Skip to main content

Full text of "Introduction to political science; a treatise on the origin, nature, functions, and organization of the state"

See other formats


.vW 









so 






^mimoj^.. 




,5MEUNIVER% 




^(i/ojnv3-jo^ <%ojiiv3jo^ <rji]ONvsoi^ 



%a3Ai 



-< 



^OFCALIF0% 



^OF-CAIIFO/?^ 




AWEUNIVERi-// 



^<?AavHaii# ^i^Aavaan^' <rii30Nvsoi^ 



lOSA 




c? 

%a3Ai 



^WEUNIVER%. 




<ril33NVS01^ 



^lOSANCElfjVj. 

o 








'^/Sa3AINfl-3WV^ '^(tfOJIlVDJO^ '%OJn 






,^WEUNIVERy/A 




^10SAIICEI% 



<rii3DNY.Sm^ %: 



::3 



^OF-CALIFOff^ 



^OFCA 




^<?Aavaaii# '-^omx 



.^ 






'uudiivj-iu 



'UU3llVJdU • 






M^liV^ 



'MEUNIVERS-//, 



^OFCAIIFO/?^ ^OFCALIFOff^ ^^WEUNIVERS/^ 



i'^^^ 



'/- 



>:lOSiS 




<ril33NVS01^ %a3A 



^lOSA 







=^3 =r 



vt 



ZJ\ 15% ZJ\ I 



.>^ ^ 



^ 



^(^Anvjiaii-^^ ^<?Aavaaii-# 










^OFCALIFO/?.)^ 




>&Aavaani^ 



vvlOS-ANCELfX;;. 
o 




■^/^il3AINIl-3WV 



,5X\EUNIVER5)5^, 







,\WEUNIVERSyA 




f 



u3 ■ 



^•lOSANCElfX> 
o 




3 
■^/jiiaAiNn-jwv*' 

o 



i !<.<» 







.A\f-URRAIlY/7/ 



-s^lLIBRARYQ^ 



AOf'CAllF0%, 




^<?Aavijaii^^' 



, ■ .vWSANCELfj> 

T> O 




%d3AINn3WV ' 









-^UIBRARYQ^^ ,^\\^E'UNIVER% 




so 

^ %0JI'IV3JO'^' 



^.OF-CAIIF0% 



^ 1 t M. 



INTRODUCTION 

TO 

POLITICAL SCIENCE 



A TREATISE ON THE ORIGIN, NATURE, 

FUNCTIONS, AND ORGANIZATION 

OF THE STATE 



BY 
JAMES WILFORD GARNER, Ph.D. 

PROFESSOR OF POLITICAL SCIENCE, UNIVERSITY OF ILLINOIS 




NEW YORK •:• CINCINNATI •:• CHICAGO 

AMERICAN BOOK COMPANY 



WiiMmm ^xc\]iMti Sunning 

A NAME HONORED AMONG SCHOLARS 



Copyright, 1910, by Jj\mes Wilford Garner. 
Entered at Stationers' Hall, London. 

W. p. 6 



Ill 



PREFACE 

My aim in the preparation of this work has been to provide a text- 
book for students which, though elementary, shall cover a wider range 
of topics relating to the state than is usually dealt with in treatises 
designed for text-book use. With this end in view, I have included 
chapters on the nature, scope, and methods of political science; on 
the essential constituent elements of the state ; on the functions and 
sphere of the state ; on citizenship and nationality ; on constitutions 
— their nature, sources, and kinds; on the distribution of govern- 
mental powers ; and on the electorate. I make no pretension to 
having treated the subject in an exhaustive manner. I have simply 
attempted to set forth in an elementary way the more important theo- 
ries concerning the origin, nature, functions, and organization of the 
state, and to analyze and criticise them in the light of the best scien- 
tific thought and practice. 

With a view to encouraging students to read as widely as possible, 
I have placed at the head of each chapter a bibliography of the 
best literature in English, German, French, and Italian, dealing with 
the subject treated in the chapter, and have cited many additional 
authorities in the footnotes. 

Proofs of various parts of the book have been read by university 
professors, each of whom is an authority on the particular subject 
dealt with in the chapter submitted to him, and the entire work has 
had the benefit of their suggestions. For this service my thanks are 
due to Professors J. Q. Dealey, of Brown University ; W. F. Dodd, of 
Johns Hopkins University ; Blaine F. Moore, of the University of 
Michigan ; Paul S. Reinsch, of the University of Wisconsin ; L. S. 
Rowe, of the University of Pennsylvania ; Walter J. Shepard, of the 
University of Ohio ; D. Y. Thomas, of the University of Arkansas ; 
and W. W. Willoughby, of Johns Hopkins University; to my col- 
leagues. Professors John A. Fairlie, David Kinley, and N. A. Weston, 
and Messrs. F. C. Becker and Thomas Reed Powell, of the Univer- 
sity of Illinois ; to Mr, Roy E. Curtis, formerly of the Wisconsin 
Legislative Reference Bureau ; and to Mr. H. G. James, graduate 
student in the University of Illinois and member of the Illinois bar. 

JAMES W. GARNER. 



Urbana, Illinois. 



668446 



CONTENTS 



CHAPTER PAGK 

I. Political Science .... 7-37 

I. Terminology and Distinc- 

tions 7 

II. Definition and Scope . . 12 

III. Is there a Science of Gov- 

ernment? 16 

IV. The Methods of Political 

Science 19 

V. Relation of Political Sci- 

ence to Other Sciences . 30 

II. The Nature of the State 38-65 

I. Definitions and Distinc- 

tions 3^ 

II. State and Nation; the 

Principle of Nationality 
in the Organization of 
States 45 

III. The Organic Theory of 

the State 56 

III. Essential Elements of 

THE State . . . 66-85 
I. People 66 

II. Territory 68 

III. Government and Sover- 

eignty 79 

IV. Other Attribute!^ and As- 

pects of the State . . 81 

IV. The Origin of the State 86-122 
I. Preliminary Observations . 86 

II. The Theory of Divine 

Origin 87 

III. The Compact Theory . . 92 

IV. Criticism of the Compact 

Theory 108 

V. The Patriarchal and Ma- 
triarchal Theories . . 114 
vi. The Force Theory . . . 119 
VII. The Historical or Evolu- 
tion Theory .... 120 



CHAPTER PAGE 

V. Forms of State and Asso- 

ciations OF States 123-167 

I. Principles of Classifica- 

tion 124 

^5jjl. Monarchies, Aristocra- 
cies, and Democracies 125 

III. Theocracies 128 

IV. Other Classifications . . 132 
V. Simple and Composite 

States ; Personal and 

Real Unions .... 136 

VI. Confederations . . . 142 

VII. Federal Unions . . . 148 

VIII. Part-Sovereign States . 158 

IX. Neutralized States . . 163 

X. International Unions . 165 

VI. Forms of Government 168-204 

I. Monarchies, Aristocra- 
\ cies, and Democracies 169 

II. Other Classifications ; 

Cabinet and Presiden- 
tial Government . . 178 

III. Unitary, Federal, and 

Confederate Govern- 
ment 191 

IV. Bureaucratic versus Pop- 

ular Government . . 197 
V. Succession of Govern- 
mental Forms . . . 200 

VII. Forms of Government 

{Continued) . . 205-236 
■^I. Monarchical Government 205 
■^ II. Aristocratic Government 210 
-■-,111. Democratic or Popular 

Government .... 219 
rv. Federal Government . . 230 . 
V. The Test of a Good Gov- 
ernment ^235 



CONTENTS 



CHAPTER PACK 

VIII. SoVEREIG>fTY . . . 237-272 

I. Definitions and Distinc- 
tions ; Legal versus 
Political Sovereignty ; 
De Facto versus De 
Jure Sovereignty . . 238 
II. The Attributes of Sov- 
ereignty 248 

III. The Absolutism of Sov- 

ereignty ; Theory of 
Limitations .... 250 

IV. The Indivisibility of Sov- 

ereignty 257 

V. Internal versus External 

Sovereignty .... 264 
VI. Is Sovereignty an Essen- 
tial Element of the 

State ? 265 

VII. Austin's Theory of Sov- 
ereignty 268 

IX. Theories of State Func- 

tions 273-310 

I. The Individualistic or 

Laissez-faire Theory . 274 
II. Defense of the Laissez- 
faire Theory .... 282 

III. Criticism of the Laissez- 

faire Theory .... 289 

IV. The Socialistic Theory . 298 

X. The True Sphere of the 

State .... 311-329 
I. The Ends or Purposes of 

the State 31 1 

II. Classification of State 

Functions . . . . 318 
III. Observations and Con- 
clusions 320 

XI. Citizenship and Nation- 

ality 330-372 

I. Terminology and Dis- 
tinctions 330 

II. The Acquisition of Citi- 
zenship 333 

III. The American and Eng- 
lish Rule 337 



CHAPTER PAGE 

IV. Citizenship by Direct 

Grant or Conferment; 
Naturalization . . . 341 
V. Other Modes of Acquir- 
ing Citizenship . . . 349 
VI. Citizenship in a Federal 

State 352 

VII. I-oss of Citizenship . . 358 
VIII. What constitutes Expa- 
triation? 363 

IX. The Status of Aliens . 365 

XII. The Constitution of the 

State .... 373-406 
I. Definitions and Distinc- 
tions 373 

II. Classification of Consti- 
tutions 377 

III. Anglo-American and 

French Types Con- 
trasted 382 

IV. Written and Unwritten 

Constitutions . . . 388 

V. Merits and Demerits of 

Each Type .... 392 
VI. Essentials of a Written 

Constitution .... 397 
VII. Development and Ex- 
pansion of the Consti- 
tution 402 

XIII. The Distribution of the 

Powers of Govern- 
ment 407-426 

I. The Theory of the Sepa- 
ration of Powers . . 407 
II. Limitations of the Theory 417 

XIV. The Legislative Depart- 

ment 427-488 

I. Organization : the Uni- 
cameral versus the Bi- 
cameral Principle . . 427 
II. Methods of Apportion- 
ment 440 

III. Method of Choice . . 442 

IV. Direct versus Indirect 

Election 447 



CONTENTS 



CHAPTER PAGE 

V. Qualifications and Term 

of the Representative 451 
VI. Representation of Mi- 
norities 458 

VII. Representation of Inter- 
ests 469 

VIII. Beginnings of the Rep- 
resentative System : 
Early Ideas .... 474 
IX. The Modern Idea (.if Rep- 
resentation; Instructed 
versus Uninstructed 



Representation 



XV. The Electorate . . 
I. Theories of Suffrage 
II. Universal Suffrage 
III. Woman Suffrage , 



478 

489 
502 
508 



XVI. The Executive Depart- 
ment 517-570 



I. Principle of Organiza- 
tion ; Plural versus 
Single Executives. . 517 
II. Mode of Choice of the 

Executive .... 527 

III. The Term of the Execu- 

tive 537 

IV. The Executive Power . 546 

V. Relation of the Executive 

to the Legislature and 

to the Judiciary . . 558 

XVII. The Jcdiciary . . 571-606 
I. Independence of the Ju- 
diciary 571 

II. Judicial Organization . 580 

III. Administrative Courts 

and Administrative 
Jurisdiction .... 585 

IV. Power of the Judiciary 

over the Acts of the 
Legislature .... 594 



Index 607-616 



CHAPTER I 

POLITICAL SCIENCE 

Suggested Readings: Amos, "Science of Politics," chs. i and 2; 
Bluntschli, " Allgemeine Staatslehre," translated into English under 
the title "Theory of the State," Introduction and ch. i; also his 
"Politik," bk. I, ch. i; Bornhak, " AUgemeine Staatslehre," pp. 1-8 ; 
Calker, " PoUtik als Wissenschaft ;" De Parieu, "Principes de la 
Science politique," Introduction; Funck-Brentano, "La PoHtique," 
ch. I ; GuMPLOWicz, " Allgemeines Staatsrecht," pp. 1-13 ; Held, 
" Staatsrecht," pp. 1-21; Holtzendorff, "Principien der Politik," 
bk. I, chs. I and 2; Huhn, "PoHtik," pp. 9-21 ; Janet, "Histoire de la 
Science politique," vol. I, Introduction; Jellinek, "Recht des mod- 
ernen Staates," bk. I, chs. i and 2; Lewis, "Methods of Observation 
and Reasoning in Politics," vol. I, chs. 2-6; McKechnie, "The State 
and the Individual," Introduction; Mill, "System of Logic," bk. VI, 
chs. 6-10; Von Mohl, " Encyklopadie der Staatswissenschaften," sec. 
X; Pollock, "History of the Science of Politics," ch. i ; Ratzenhofer, 
"Wesen und Zweck der PoHtik," pp. 26-30; Rehm, "AUgemeine 
Staatslehre," in Marquardsen's " HandbuchdesoffentUchenRechts," 
Einleitungsband, II, pp. i-io; Rowe, "Problems of Political Science," 
"Annals of the American Academy of Political and Social Science," 
vol. X, pp. 165-186; Schmidt, " AUgemeine Staatslehre," vol. I, 
pp. 1-33; Schmidt, " Grundziige der praktischen Politik," pp. i-io; 
Seeley, "Introduction to Political Science," lect. I; Sidgwick, "Ele- 
ments of Politics," ch. i; Munroe Smith, "The Domain of Political 
Science," "Political Science Quarterly," vol. I, pp. 1-9; Walcker, 
" PoUtik der constitutionellen Staaten," ch. i ; Walter, " Naturrecht 
und Politik," pp. 1-20; Willoughby, "Political Philosophy," 
" South Atlantic Quarterly," vol. V, pp. 161 et seq.; also, "The Value 
of Political Philosophy," by the same author, " Political Science 
Quarterly," March, 1900; Woolsey, "Political Science," vol. I, pt. 
II, ch. i; Zacharia, " Vierzig Bucher vom Staate," vol. I, bk. 6. 
sees. I and 2. 

I. TERMINOLOGY AND DISTINCTIONS 

There is as yet no commonly accepted term by which The Term 
the science of government may be designated. The term ^^°n~ 
"politics" (from Tro'Xi?, iroXLTeCa), employed by many writers, 

7 



8 



POLITICAL SCIENCE 



Theoreti- 
cal and 
Practical 
Politics 



is open to the objection that it possesses several meanings 
and, when used without quaHfication or discrimination, 
leads to confusion if not misunderstanding/ According to 
popular usage it is a term of both a science and an art, that 
is, it is employed to denote both the systematic study of 
the phenomena of the state and the totality of activities 
which have to do with the administration of the affairs of 
state. As a science it furnishes us with a mass of theo- 
retical knowledge concerning the state; as an art it seeks 
solutions of concrete problems and is concerned with the 
processes and means by which government is actually 
carried on and the ends of the state are realized.^ In a 
narrow and somewhat partisan sense the term is applied 
to electioneering methods by which public officials are 
chosen and political policies promoted.' 

"Theoretical" politics is sometimes distinguished from 
"practical" or "applied" poHtics, the former being con- 

^ Jellinek has well remarked that there is no science which is so much in need of a 
good terminology as is political science. "Recht des modernen Staates," p. 129. 

^ Some writers maintain that "politics" as a science is concerned with that which 
is rather than that which ought to he, that its sphere is the present and the past ; 
while as an art it looks to the future and aims at that which ought to be in the govern- 
ment of communities. See, e.g., Jellinek, op. cit. p. 13. For further discussion of 
the distinction between politics as an art {Staats praxis, Staatskunst) and politics as 
a science {Staatswissenschaft, Staatslehre) see Bluntschli, "Politik " (vol. Ill of his 
"Lehre vom modernen Staat.") pp. 1-6; Holtzendorff, "Principien der Politik," 
chs. 2 and 3; Von Mohl, " Encyklopadie der Staatswissenschaften," p. 543; Funck- 
Brentano, "La Politique," pp. 38-48; Rehm, " Allgemeine Staatslehre," pp. 9-10 ; 
Schmidt, " Grundziige der praktischen Politik," pp. 1-3 ; Walcker, " Politik der 
constitutionellen Staaten," p. 4; and Zacharia, "Vierzig Biicher vom Staate," 
vol. I, p. 169. 

^ The term was employed as an art in its widest sense by Bluntschli when he said 
"politics" {Politik) is concerned with the whole conscious life of the state and the 
guidance of its affairs. The term is employed as that of a science by such writers 
as Holtzendorff in his "Principien der PoHtik," by Froebel in his "Theorie der 
Politik," by Dahlman in his " Politik," by Huhn in his " Politik," by Waitz in 
his "Grundziige der Politik," and by many others. A singular use of the term 
"politics" is made by Goodnow in his work entitled "Politics and Administration," 
where it is employed to denote the activities of the state which have to do with the 
expression of the state will, in contradistinction to the term "administration," which 
is concerned with the execution of the state will. 



TERMINOLOGY AND DISTINCTIONS 9 

cerned with the fundamental characteristics of the state 
without reference to its activities or the means by which 
its ends are attained; the latter, with the state in action, 
that is, as a dynamic institution/ Thus everything that 
relates to the origin, nature, attributes, and ends of the 
state, including the principles of political organization and 
administration, falls within the domain of "theoretical" 
politics, while that which is concerned with the actual 
administration of the affairs of government belongs to the 
sphere of "applied" or "practical" politics. The majority 
of writers to-day, however, prefer the term "political 
science" instead of "theoretical" politics; and the simple 
term "poHtics," instead of "applied" or "practical" 
politics. Some writers employ the term "science of poli- 
tics," ^others, the "theory of the state," the Staatslehre of 
the Germans, because, as one author remarks, "it gives a 
clearer idea of the wide nature of the field of inquiry" and 
at the same time "avoids the necessity of a delicate and 
intricate discussion as to whether the study of politics is 

^ The distinction between "theoretical" and "applied" poHtics has been observed 
by Jellinek, Holtzendorff, Janet, Cornewall Lewis, Alexander Bain, Sir Frederick 
Pollock and others. See, for example. Pollock, "History of the Science of Politics," 
pp. 94-95, for the following conzparative outline (abridged) : 

Theoretical Politics. Applied Politics. 

A. Theory of the state (origin, classifica- A. The state (existing forms). 

tion, forms, sovereignty). 

B. Theory of government (institutions, B. Government (constitutional law and 

departments, order, defense, tax- usage, parliamentary systems, 

ation, positive law). army and navy, currency and 

trade). 

C. Theory of legislation (objects, gen- C. Laws and legislation (procedure, 

eral jurisprudence, method and laws, courts, precedents, etc), 

sanction, interpretation and ad- 
ministration). 

D. Theory of the state as an artificial D. The state personified (diplomacy, 

person (corporations, interna- peace and war, treaties, conven- 

tional law). tions, etc.) 

* For example, Amos, Bagehot and Pollock. 



lO 



POLITICAL SCIENCE 



The Term 
'Political 
Science" 



a science or a philosophy." * In spite of all objections, 
however, the term ''political science" {Staatswissenschaft, 
science politique, scienza politico) has come to be more 
generally employed by the best writers and thinkers to 
describe the mass of knowledge derived from the system- 
atic study of the state, while the meaning of the term 
"politics" is confined to that of the business or activity 
which has to do with the actual conduct of affairs of 
state. ^ 

Against the term "political science" the objection has 
been urged that it does not correspond with the facts, since 
there is no single science dealing with the state, but rather 
a group of related sciences, each concerned with particular 
aspects of it. Thus, it is said, the modern state presents 
itself under divers aspects and is capable of being studied 
from many different points of view. The mass of knowl- 
edge relating to each phase or aspect of the state has de- 
veloped a history and a dogma of its own quite distinct 
from the rest. The phenomena of each have become so 
numerous and complex as to create a necessity for special 
treatment by the investigator. Thus the tendency has 
been to group them into separate categories and treat 
them as distinct sciences.^ The plural form, the "political 
sciences," therefore seems to correspond more nearly with 
the facts and is preferred by many writers, especially the 



* McKechnie defends the use of this term. He criticises the use of the term 
"political science" for the reason that it "often conveys the idea that it is merely 
a study to be entered upon as a means to party ends, not as a resolute endeavor to 
find truth for its own sake." The term "science of politics" he finds equally 
objectionable for the reason that the term "science" is associated with logical and 
rigorous methods of investigation and experiment applied to such objects as they 
are adapted to, while the word "politics" is associated with all that is changeable 
and contingent in the affairs of a nation, rather than with the principles of absolute 
and universal truth. "The State and the Individual," pp. 28-30. 

* On the use of technical terms in political science see Lewis, "Methods of Ob- 
servation and Reasoning in Politics," vol. I, ch. 4. 

^Compare on this point Dunning, "Political Theories, Ancient and Medieval," 
p. XXI, and Giddings, "Principles of Sociology," ch. II. 



TERMINOLOGY AND DISTINCTIONS 1 1 

French, who commonly speak of the sciences morales et 
politiques} 

According to the latter view a political science is one The 
which is concerned, not necessarily with the state in all science?' 
of its aspects or relations, but with any particular phe- 
nomenon of the state or any class of phenomena either 
as a whole or incidentally, directly or indirectly. Thus 
there may be as many political sciences as there are con- 
ceivable aspects or forms of manifestation of the state. 
In this sense sociology, political economy, public finance, 
public law, diplomacy, constitutional history, may be 
denominated political sciences, since they all deal either 
primarily or incidentally with some class of phenomena 
belonging to the state. ^ Those who maintain that the 
singular form accords more nearly with the facts argue that 
in reality the above-mentioned sciences are rather coordi- 
nate social sciences than independent political sciences. 
Thus, says one writer, in support of this view, "The various 
relations in which the state may be conceived may be sub- 
divided and treated separately, but their connection is too 
intimate and their purpose too similar to justify their 
erection into different sciences." ^ Without attempting to 
pass judgment upon the respective merits of the two views, 

' Among those who have defended the plural term may be mentioned Von Mohl, 
Holtzendorff, Lewis, Dunning, and Giddings. Von Mohl, in his "Geschichte und 
Litteratur der Staatswissenschaften, " published in 1855, vol. i, p. 126, classified 
the "political sciences" (i) as general political theory (Allgemeine Staatslehre); (2) 
as the dogmatic political sciences, including public law, political ethics, and the art 
of politics (Staatskunst), including diplomacy, administration, etc.; and (3) as the 
historical political sciences, including constitutional history and statistics. Von 
Mohl's classification was adopted in substance by Franz Holtzendorff twenty years 
later in his " Principien der Politik" (pp. 4-6). A recent attempt to classify the 
"political sciences" has been made by Von Mayr in his "Begrift" und Gliederung 
der Staatswissenschaften" (1906). 

^ Giddings even enumerates philosophy as one of the "political sciences, " o/>. cit., 
p. 27. See also his " Province of Sociology," in the " Annals of the American Acad- 
emy of Political and Social Science," vol. I, p. 66. 

* Munroe Smith, "The Domain of Political Science," in the " Political Science 
Quarterly," vol. I, p. 5. 



12 POLITICAL SCIENCE 

we believe that either form may be justified by distinguish- 
ing between poHtical science in its widest and most general 
sense, and the auxiliaries or disciplines of that science, 
employing the singular to designate the former and the 
plural the latter/ The former is the general science of the 
state, the state in the aggregate, the state considered from 
all points of view; the latter are the special or disciplinary 
sciences which deal with particular aspects or activities of 
the state. Such are the sciences of jurisprudence, political 
economy, public law, sociology, political and constitutional 
history, etc. 

II. DEFINITION AND SCOPE 

It was a saying of a great Roman jurist that all defini- 
tions are dangerous because they never go far enough and 
are nearly always contradicted by the facts. The truth of 
this observation applies as well to general propositions in 
political science as to those of the civil law. Nevertheless, 
it is equally true, as has been well said by a noted political 
writer, that "to obtain clear and precise definitions of the 
leading terms is an important achievement in all depart- 
ments of scientific inquiry." ^ The renowned German 
scholar Bluntschli defined political science {Staatswissen- 
schaft) as "the science which is concerned with the state, 
which endeavors to understand and comprehend the state 
in its fundamental conditions, in its essential nature, its 
various forms of manifestation, its development." ^ Gareis, 

' See Jellinek {op. cit., pp. 5-6), who points out the necessity of distinguishing be- 
tween the science of the state in the larger sense of the word, including the science 
of the law; and the sciences of the state in a stricter sense which may be designated 
as disciplines; see also Von Mayr, "Begriff und GHederung, " who dwells upon the 
same distinction. 

* Sidgwick, "Elementsof Politics," p. 19. Compare also Bain, "Deductive and 
Inductive Logic," p. 547, and Rehm, " Allgemeine Staatslehre," p. i. For further 
observations on the value of definitions in political science see Munroe Smith in the 
"Political Science Quarterly," vol. I, p. i; Rowe, "Problems of Political Science," 
"Annals of the American Academy of Political and Social Science," vol. X, p. 23. 

' "Allegemeine Staatslehre," being vol. I of his "Lehre vom mod. Staat," p. 16 
Compare also Holtzendorff, "Principien der Politik," p. 10. 



DEFINITION AND SCOPE 13 

another German writer, says "Political science considers 
the state, as an institution of power (Machtzvesen) , in the 
totality of its relations, its origin, its setting (land and 
people), its object, its ethical signification, its economic 
problems, its life conditions, its financial side, its end, etc."* 
Jeilinek, one of the ablest of living European publicists, 
distinguishes between theoretical political science (theore- 
Hsche Staatswissenschaft oder Staatslehre) and applied politi- 
cal science {angewandte oder praktische Staatswissenschaft) . 
Theoretical political science is again subdivided by Jeilinek 
into the general theory of the state {allgememe Staatslehre) 
and special or particular theory of the state {hesondere Staats- 
lehre). The former has for its purpose the study of funda- 
mental principles. It considers the state in itself and the 
elements- which constitute it; not the phenomena of a 
particular state, but the totality of all the historico-social 
aspects in which the state manifests itself. Further- 
more, the dual nature of the state, that is, its character 
both as a social phenomenon and a legal or juridical insti- 
tution, furnishes the basis for still another distinction, to 
\vit, that between the social doctrine of the state {soziale 
Staatslehre) and constitutional political theory {Staats- 
rechtslehre) . The former deals with the state primarily as 
a social organization, that is, as a society of individuals 
organized for common ends; the latter, with the state as 
a concept of public law, a juristic entity or legal phe- 
nomenon.^ 

* "Allgemeine Staatslehre," in Marquardsen's "Handbuch des ofifentlichen 
Rechts," Einleitungsband, I, p. i. Zacharia, one of the early German writers on 
the state, conceived the province of political science to be "to set forth in system- 
atic order the fundamental principles according to which the state as a whole is to 
be organized and the sovereign power exercised." " Vierzig Biicher vom Staate," 
vol. I, bk. 6, sec. i. 

' See Jeilinek, "Recht des mod. Staates," pp. 9-13. Sir G. C. Lewis subdivided 
the study of political phenomena into the " science of politics ' ' and the " art of politics," 
or pure and applied politics, the latter consisting mainly of maxims of political prac- 
tice. The science of politics he subdivided into three "principal departments." 
The first has to do with the registration of political facts, gained by observation and 



14 POLITICAL SCIENCE 

A succinct definition is that of Paul Janet, a distinguished 
French writer, who conceives political science to be "that 
part of social science which treats of the foundations of 
the state and the principles of government."^ According 
to Seeley, "political science investigates the phenomena 
of government as political economy deals with wealth, 
biology with life, algebra with numbers, and geometry 
with space and magnitude."^ Seeley points out that as 
most of the commonwealths of antiquity were city states, 
ancient political science was little more than the science 
of municipal government, a truth which finds illustration 
in Aristotle's treatise on "Politics," a work practically 
limited in its scope to the consideration of such polities 
only as were city states. Modern political science on the 
other hand is, as has been well said, the science of the 
national country state and is tending to become the science 
of the world state. Furthermore, says a well known writer, 
the modern requirements of territorial expansion, repre- 
sentative government, and national unity have made po- 
litical science not only the science of liberty but also the 
science of sovereignty.^ 
Points All of the opinions quoted above are in substantial 

metr^° agreement on the essential point, namely, that the phe- 
nomena of the state in its varied aspects and relation- 
study. The second, which he denominated "positive or descriptive politics," teaches 
what "is involved in the idea of political government and corresponds to the statical 
branch of mechanics. It defines the elements necessary to constitute a government 
and explains the various forms without passing judgment on their relative merits." 
The third "department," vi^hich he designated as "speculative politics," inquires 
how certain forms of government or institutions work, seeks to determine from 
the observed facts and principles of human nature their character and tendency, 
the operation of laws, etc. "Methods of Observation and Reasoning in Politics," 
vol. I, pp. 53-59- 

* Art. "Politique," in Block's "Dictionnaire de la Politique," vol. II, p. 577. 

* "Introduction to Political Science," p. 18. 

'Burgess, "Relation of Political Science to History," in Report of the American 
Historical Association for 1896, vol. I, p. 206. For another view that liberty is one 
of the "chief subjects "of political science, see Lieber, "Civil Liberty and Self-govern- 
ment," p. 44; also his "Political Ethics," vol. I, bk. II, ch. 13. 



DEFINITION AND SCOPE 15 

ships, as distinct from the family, the tribe, the nation, 
and from all private associations, though not unconnected 
with them, constitute the subject of political science. In 
short, political science begins and ends with the state. 
In a general way its fundamental problems include, first, 
an investigation of the nature of the state as the highest 
political agency for the realization of the common ends of 
society and the formulation of fundamental principles of 
state life; second, an inquiry into the nature, history, and 
forms of political institutions; and third, a deduction 
therefrom, so far as possible, of the laws of political 
growth and development.^ In the process of evolution 
the appearance of new political conditions may give rise 
to new problems, but upon close analysis they will be seen 
to be problems of practical politics rather than funda- 
mental problems of political science.^ 

The distinction between political science {Staatswissen- Political 
schaft) and political theory or political philosophy {Staats- fnd po^iiti 
lehre, Staats philo so phie) is generally observed by the more cai Phi- 
systematic writers on the state, though a precise demarca- °^°^ ^ 
tion of the boundary lines which separate them is difficult, 
if not impossible. Political philosophy is said to be con- 
cerned with a theoretical or speculative consideration of the 

^ "The task of political sdence," says Jellinek, "is to study in their fundamental 
relations the public powers, to examine the conditions under which they manifest 
themselves, their end and their effect, to investigate the state in its inner nature." 
" Recht des mod. Staates," pp. 9-10. 

* Treitschke, in his brilliant work, "Politik, " thus states the problem of poHtical 
science: "First, it should aim to determine from a consideration of the actual 
world of states the fundamental concepts of the state; second, it should consider 
historically what the people have chosen, what they have created, and what they have 
attained in political life, and the reasons; and, third, through this means, it should 
determine historical laws and moral imperatives," vol. I, p. 2. Cf. also Willoughby, 
"The Nature of the State," p. 382. "Generally speaking," says Willoughby, 
"there are three great topics with which political science has to deal : state, govern- 
ment, law." "Political Science, as a University Study," " Sewanee Review," July, 
1906, p. 258. Sidgwick divides the problems of political science into two general 
divisions : those relating to the organization of the state and those relating to its func- 
tion. "Elements of Politics," p. 12. 



i6 POLITICAL SCIENCE 

fundamental principles and essential characteristics of the 
materials and phenomena with which political science has 
to deal. It investigates the development of political 
thought, and inquires into the foundations of political au- 
thority; it analyzes, classifies, and forms judgments upon 
the essential attributes of the state and thereby prepares 
the way for a true political science. It is concerned rather 
with generalizations than with particulars, and predicates 
essential qualities rather than accidental or unessential 
characteristics.^ Again, it is said that while political sci- 
ence furnishes us with the results of logical thinking upon 
the nature and forms of concrete political institutions, 
political philosophy inquires into the foundations of the 
first principles which underlie them.^ A few writers make 
the distinction one mainly of teleology, pohtical science 
being concerned with what the state ought to be, while 
political philosophy considers the state as it actually is.^ 
But this distinction is not generally observed. 

IIL IS THERE A SCIENCE OF GOVERNMENT ? 

Thus far it has been assumed that the study of the phe- 
nomena of the state may under proper conditions be treated 
as a science. To this assumption, however, objections 
have been raised. Thus, it has been asserted that, on ac- 
countof the magnitude and complexity of the subject-matter 

' Willoughby, "Political Philosophy" in the "South Atlantic Quarterly," vol. V 
p. i6i; also an article by the same author entitled "The Value of Political Phi- 
losophy, " in the " Political Science Quarterly " for March, 1900. See also Dunning, 
"Ancient and Medieval Political Theories," p. xvii. The distinction between 
Staatslehre and Staatswissenschafi is dwelt upon and explained by Rehm in his 
"Allgemeine Staatslehre," p. i, and by Schmidt in his "Grundziige der praktischen 
PoJitik," pp. 1-3. 

* Compare on this point Huxley's distinction between a science and a philosophy 
in his "Object and Scope of Philosophy," Essays, vol. VI, p. 57. 

'This is Sidgwick's distinction. See his "Elements of Politics," p. 7. This 
opinion, however, is inconsistent with an earlier view of Sidgwick that political 
science endeavors to determine what ought to be so far as the constitution of govern- 
ment is concerned. "Development of European Polity," p. 2. 



IS THERE A SCIENCE OF GOVERNMENT? 17 

relating to the state, — a body of material, says an acute 
thinker, so rich and varied that, from the beginning, politi- 
cal science has been embarrassed by the weight of its wealth, 
— it is impossible to apply to it rigorous scientific methods 
of investigation. Political phenomena, we are told, are 
characterized by uncertainty, variableness, and a lack of 
order and continuity/ Much of this objection is, however, 
without weight. If, says Sir Frederick Pollock, those who 
deny the existence of a political science mean that there is 
no body of rules from which a prime minister may infallibly 
learn how to command a majority, they would be right as 
to the fact, but would betray a rather inadequate notion 
of what a science is. "There is," he rightly concludes, "a 
political science in the same sense that there is a science of 
morals." ^ 

For our purposes a science may be described as a fairly The Test 
unified mass of knowledge relating to a single subject, g^ienc< 
acquired by systematic observation, experience, or reason, 
the facts of which have been coordinated, systematized, 
and classified.' The scientific method of examining facts 
is not peculiar to one class of phenomena nor to one class of 
investigators; it is applicable to social as well as to physical 
phenomena, and we may safely reject the claim that the 
scientific frame of mind belongs exclusively to the physicist 
or the naturalist. Authorities are now generally agreed 
that the phenomena of the state present a certain connection 

* Compare Amos, "The Science of Politics," pp. 2-16. Comte denies the claim 
of "politics" to be ranked as a science because (i) there is no consensus of opinion 
among experts as to its methods, principles, and conclusions; (2) it lacks continuity 
of development, and (3) it lacks the elements which constitute a basis of prevision. 
''Positive Philosophy," Eng. tr. by Martineau, ed. of 1893, vol. II, ch. 3. 

* " History of the Science of Politics," p. 2. 

^ Compare the definition of "Science" in the Century Dictionary ; see also Lieber, 
"Political Ethics," vol. I, p. 17. "The classification of facts and the formation of 
absolute judgments upon the basis of this classification," says Pearson, in his "Gram- 
mar of Science," p. 6, "essentially sum up the aim and method of modern science." 
Again, he says, "the classification of facts, the recognition of their sequence and rel- 
ative significance, is the function of science." 
POL. SCI. — 2 



l8 POLITICAL SCIENCE 

or sequence which is the result of fixed laws, though less 
immutable, to be sure, than those of the physical v/orld; 
that these phenomena form proper subjects of scientific 
investigation; and that the laws and principles deducible 
therefrom are susceptible of application to the solution of 
concrete problems of the state/ All that is required to 
give a scientific character to the study of political phe- 
nomena is that the inquiry shall be conducted in accordance 
with a definite plan or system, with due regard to the rela- 
tions of cause and effect, so far as they are ascertainable, 
and in conformity with certain well-recognized rules of 
scientific investigation.^ 
The Con- The consensus of scientific opinion is in favor of this 
Opkaon* proposition. Aristotle described "pohtics" as the master 
science in the highest sense ^ and in practice he applied 
scientific methods to his study of Greek polities. The 
Germans have done more than any other group of scholars, 
by their profound researches and discriminating analytical 
methods, to give to it the character of a science. Holtzen- 
dorff, one of the most systematic of the German writers, 
ably defended the claim of politics to be ranked as a science. 
"With the enormous growth of knowledge," he said, "it is 
impossible to deny that the sum total of all the experiences, 
phenomena, and knowledge respecting the state may be 
brought together under the collective title of political 
science" (Staatswissenschaft) .* This is the view of Von 
Mohl, Bluntschli, Jellinek, Ratzenhofer, Treitschke, Sir G. 
C. Lewis, Sidgwick, Lieber, Woolsey, Burgess, Willoughby 
and other systematic writers on the state. "// y a done 
une science de Vetat,'" says Janet, '' non pas de tel ou tel Stat 
en particulier, mats de Vetat en general, considers dans sa 

* Compare on this point J. S. Mill, " System of Logic," p. 549. 

'"Whether there is a 'political science,'" says Huxley, "depends on whether 
any rational principles can be found to regulate the form of constitutions, the deter- 
mination of the sphere of the state, which make a complete and systematized branch 
of knowledge, clearly formulated and understood in their mutual relations." 

* "Ethics," bk. I, ch. n. * "Principien der Politik," p. 4. 



THE METHODS OF POLITICAL SCIENCE 19 

nature, ses lots, et dans ses principales formesy^ We must 
conclude, therefore, that both reason and the weight of au- 
thority justify the claim of politics to the rank of a true 
science. It renders practical service by deducing sound 
principles as a basis for wise political action and by expos- 
ing the teachings of a false political philosophy.^ As a 
science it falls short, of course, of the degree of perfection 
attained by the physical sciences, for the reason that the 
facts with which it deals are more complex and the causes 
which influence social phenomena are more difficult of con- 
trol and are perpetually undergoing change.^ On account 
of the impossibility of forecasting results with the same 
exactness and precision possible in the physical sciences, a 
fully developed science of the state must of necessity re- 
main always an ideal. As yet it is still probably the most 
incomplete and undeveloped of all the social sciences.* 

IV. THE METHODS OF POLITICAL SCIENCE 

Having endeavored to show that the study of political Limita- 
phenomena may under certain conditions acquire the char- ^^^^i. 
acter of a science, we come now to inquire into the pro- ^es 
cesses and methods by which this may be done. First of 
all, however, we must note the limitations and difficulties 

^ "Histoire de la Science politique," etc., vol. I, p. Ixxv. 

^ "Thus," says Sir Frederick Pollock, "political science must and does exist, if it 
were only for the refutation of absurd political theories and projects." "History of 
the Science of Politics," p. 4. 

^ Compare on this point Mill, "System of Logic," p. 549; and Ritchie, "Studies 
in Political and Social Ethics," p. 106. 

* Buckle, in his "History of Civilization," written in 1857, declared that, "in the 
present state of knowledge politics so far from being a science is one of the most 
backward of all the arts" (vol. I, p. 361). Buckle, however, did not deny the possi- 
bility of a political science ; what he lamented was that so little attention had been 
given to the study of the state, that as a systematic branch of knowledge it was too 
crude and undeveloped to be considered as a science. Of the same opinion was Mill, 
v.'ho wrote in 1S43, "^^ is accordingly but of yesterday that the concept of a political 
or social science has existed anywhere but in the mind of here and there an isolated 
thinker, generally very ill prepared for the realization." "System of Logic," p. 547. 



20 POLITICAL SCIENCE 

under which scientific investigation of poHtical phe- 
nomena must of necessity be conducted. The material with 
which the political scientist has to deal is very different 
from that with which the investigator in the physical 
sciences is concerned, being of such a character as not 
to permit of the use of artificial contrivances or appara- 
tus for increasing or guiding our powers of observation 
or for registering results. Not only must the investigator 
work without the assistance of mechanical aids, but he is 
handicapped by the fact that the phenomena with which 
political science deals do not follow one another according 
to invariable laws of sequence, but rather at indeterminate 
intervals, constituting, as a noted writer observes, an 
"interminable and perpetually varying series." ^ There is 
an essential difference between physical and social phe- 
nomena. The facts of history and social life cannot be 
reproduced at our volition and made the subject of experi- 
ment with a view to determining what is best under a given 
set of circumstances. Social facts never recur at regular 
intervals as the manifestations of general forces, but rather 
as the actions of certain individuals. The facts of natural 
science are susceptible of evaluation; they are governed by 
uniform and invariable laws. Each particle of matter 
is identical with every other of its own kind. An atom of 
carbon or a molecule of carbonic acid is not different from 
any other atom or molecule, but the units of the social or- 
ganism may differ infinitely from one another. There are 
no general and invariable laws governing social phenomena. 
Those which have been postulated by the ancient philoso- 
phers and some modern sociologists are but vague and 
glittering generalities. 

Not until the eighteenth and nineteenth centuries 
did the phenomena of the state come to be generally 
regarded as a proper field for scientific investigation, 

• George Come wall Lewis, "Methods of Observation and Reasoning in Politics," 

vol. I, p. 121. 



THE METHODS OF POLITICAL SCIENCE 21 

since which time the literature of the subject has been 
enriched by the investigations of many scholars, among 
whom may be mentioned Von Haller, Von Mohl, Waitz, 
Zacharia, Holtzendorff, and BluntschH in Germany; 
Rousseau, Montesquieu, De Tocqueville, and Laboulaye in 
France; Locke, Bentham, Paley, Lewis, Brougham, Austin, 
Mill, Seeley, and Sidgwick in England; and Hamilton, 
Madison, Woolsey, and Lieber in America. Among those 
who have made special contributions to the methodology 
of political science Auguste Comte, John Stuart Mill, Alex- 
ander Bain, and Sir George Cornewall Lewis deserve partic- 
ular mention/ Comte conceived the principal methods 
for the scientific study of social phenomena to be three in 
number, namely, observation, experiment, and comparison.* 
Mill recognized four methods: the chemical or experi- 
mental, the geometrical or abstract, the physical or con- 
crete deductive, and the historical method, the first two of 
which he considered to be false methods, the last two, the 
true ones.^ BluntschH considered the true methods of 
political investigation to be the philosophical and the his- 
torical.'' A recent French writer who has devoted a volume 
to the subject of methodology in political science recognizes 
six possible lines of investigation : first, the sociological ; 
second, the comparative; third, the dogmatic; fourth, the 
juridical; fifth, the method of good sense {du bon sens) ; and, 
sixth, the historical.^ Other writers dwell upon what they 

* Jellinek observes that in the literature of political methodology the greatest con- 
fusion reigns. Many of the best writers on the subject, he says, have not been con- 
scious of the difficulties and have not learned how easy it is to fall into error by con- 
founding fantasies and analogies with real truths. " Recht des mod. Staates," 
p. 24. For an examination of the literature and a discussion of the subject of the 
methodology of political science, see Jellinek, op. clt., bk. I, ch. 2. 

^ "Positive Philosophy" (tr. by Martineau), vol. II, pp. 79-91. Comte conceived 
an ultimate fourth method, the historical, to be applied only in the investigation of the 
most complex social phenomena. Compare also McKenzie, "Introduction to Social 
Philosophy," p. 14. 

^ "System of Logic," pp. 550-587. * " Allgemeine Staatslehre," bk. I, ch. II. 

* Deslandres, "La Crise de la Science politique at le Probl^me de la M^thode." 



22 



POLITICAL SCIENCE 



Recog- 
nized 
Methods 



The 
Method 
of Experi 



are pleased to call the biological and psychological methods. 
Without considering each of these in turn we may observe 
that some of them are hardly applicable to the study of politi- 
cal phenomena, while others are nothing more than particular 
forms of the comparative method — a method so broad as 
to comprehend the processes of accumulation, arrangement, 
classification, coordination, elimination, and deduction. 

We may well question the claim of the experimental 
method to a rightful place in the methodology of poHti- 
mentation cal science bccausc, as has already been stated, the nature 
of society is such that it cannot very well be made an 
object of artificial experimentation. "We cannot," says 
Sir George C. Lewis, "treat the body politic as a corpus 
vile and vary its circumstances at our pleasure for the sake 
only of ascertaining abstract truth. We cannot do in 
pohtics what the experimenter does in chemistry. We 
cannot try how the substance is affected by change of tem- 
perature, by burning, by dissolution in liquids, by combina- 
tion with other chemical agents, and the like. We cannot 
take a portion of the community in our hands as the king 
of Brobdignag took Gulliver, view it in different aspects 
and place it in different positions in order to solve social 
problems and satisfy our speculative curiosity." ^ If the 
chemist wishes to study the effect of a combination of cer- 
tain substances, he can create by artificial processes condi- 
tions favorable to the investigation and exclude disturbing 
agencies. He may isolate the phenomenon with which he 
deals and expose it to certain selected influences, leaving 
the surrounding medium unchanged. But if the political 
scientist wishes to experiment with democracy, for in- 
stance, he cannot select a state at will, introduce his democ- 
racy and wait for determinate results. He will find him- 
self powerless to exclude extraneous influences, such, for 
example, as famines, commercial crises, insurrections, or 



' "Methods of Observation and Reasoning in Politics," vol. I, pp. 164-165. 



THE METHODS OF POLITICAL SCIENCE 23 

other happenings which might destroy the results of the 
experiment/ 

But while scientific experimentation, as the term is 
employed in the physical sciences, is inapplicable to the 
study of politics, practical experiments, the experimenta 
fnidifera of Bacon, are being constantly made, con- 
sciously or unconsciously. It is true, as Comte points out, 
that political experimentation really takes place whenever 
the regular course of state life undergoes conscious or un- 
conscious change.^ Government, of necessity, is constantly 
trying experiments on the community.^ Indeed the whole 
life of the state is a succession of activities which, in a sense, 
are experimental in character. The enactment of every 
new law, the establishment of every new institution, the 
inauguration of every new policy, is experimental in the 
sense that it is regarded merely as provisional and tentative 
until experience has proved its fitness to become perma- 
nent. By observing the operation of a new law or a new 
policy and then enlarging or diminishing its scope as expe- 
rience suggests modification, the legislature is able to adapt 
its provisions to the needs and desires of the community. 
The process is in the nature of an experiment whose pur- 
pose is not the ascertainment of a general truth — not 
experimenta lucifera — but experiments for the purpose 
of testing and improving the institution. 

The so-called sociological method considers the state The So- 
primarily as a social organism, whose component parts are an]°|io-^ 
individuals, and seeks to deduce its qualities and attributes log'cai 
from the qualities and attributes of the men composing it. 
It seeks to interpret the life of the state by applying to it 
the theory of evolution in the same way that the growth 

^ Compare Bain, "Deductive and Inductive Logic," p. 563. 

* "Positive Philosophy," vol. II, p. 83. 

' Lewis, op. cil., vol. I, p. 173. "If by an experimental science," observes Lewis, 
"we mean a science which admits of scientific experiments, of experimenta hicifera, 
then politics is not an experimental science; but if we mean a science founded on 
observation and experience, politics is an experimental science." Op. cit., p. 178. 



24 POLITICAL SCIENCE 

of the individual is explained by evolution. Closely akin 
to the sociological method is the biological, which attributes 
to the state the attributes of a living organism and which 
attempts to define and classify its separate parts, to de- 
scribe its structure in the nomenclature of anatomy, and to 
differentiate and analyze its functions and trace its life 
processes according to the methods and terminology of the 
biological sciences. Among those who have made notable 
contributions to the study of organized society from the 
sociological and biological points of view may be men- 
tioned Auguste Comte, Herbert Spencer, the Austrian 
scholars Gumplowicz and Schaffle, and the French writers 
Durkheim, De Greef, Fouillee, and Letourneau, and the 
Russian Lilienfeld. Comte in this study of society 
dwells at length upon what he calls "social physics" and 
"social physio'ogy."^ Spencer, who was deeply infatu- 
ated with the biological analogy, drew a striking par- 
allel between the social and animal organisms, pointing 
out that each possessed a "sustaining system," a "dis- 
tributing system" and a "regulating and expending 
system." ^ 

The first criticism to be made of the sociological and 
biological theories is that they are not so much methods of 
investigation as points of view from which the state may be 
considered. The biological method rests mainly upon 
analogy instead of upon real similarity in essentials. It 
requires but little reflection to see that the resemblance 
between the body politic and the human organism is at 

' "Positive Philosophy, ed. of i86S, pp. 487-489. For an identification of socio- 
logical and biological laws see an article by M. Novicow, "Annales de I'lnst. de 
Sociologie," 1897, p. 79. For a discussion of the so-called sociological method see 
Deslandres, op. cit., p. 53 et seq.; Worms, "Revue int. de Sociologie," 1893, p. 12; 
Gumplowicz, "Sociologie und Politik," also his " Sociologische Staatsidee"; Durk- 
heim, "Les Regies de la Methode sociologique " ; De Greef, "Les Lois sociolo- 
giques"; and Fouillee, "La Science sociale contemporaine," ch. III. 

^ See his "Principles of Sociology," vol. I, chs. 7, 8, and 9. For an ingenious 
attempt to trace the resemblances between natural science and political science, 
see Gumplowicz, "AUgemeine Staatsrecht," ch. i. 



THE METHODS OF POLITICAL SCIENCE 25 

best only superficial, that the laws of growth and change 
which govern the one are inapplicable to the growth and 
development of the other, and that little or nothing is to 
be gained by dwelling upon the analogy. ^ 

Essentially the same judgment may be passed upon the The 
so-called psychological^ method, which in recent years has lo^^car 
been overexploited by a certain class of writers, mostly Method 
French, who have attempted to explain social phenomena and 
interpret social institutions through psychological laws.^ 

A method of treatment which enjoys great favor among The 
German political writers and to a less degree among the ^e^hod^ 
French is the juristic or juridical method.^ It is the aim 
of this method, according to Jellinek, to "determine the 
content of the rules of public law and to deduce therefrom 
the conclusions to which they lead." It regards political 
science as a science of legal norms {Staatsrechtslehre) having 
nothing in common with the science of the state as a social 
organism {Soziale Staatslehre) . It conceives the relations 
of the state always as "offentliche Verhdltnisse," political 
concepts as ''Rechtsbegriffe" and describes the constitution 
and activities of the state only in terms of their ''rechtliche 
Natur.'' In short, it treats society, not as a social phe- 
nomenon, but as a purely juridical regime, an ensemble of 
public law, rights, and obligations, founded on a system of 

^ See an article by Lilienfeld, entitled " Y a-t-il une loi de revolution des formes 
politiques?" in the " Annales de I'Inst. de Sociologie," 1895, pp. 235-246. For a 
negative view see an article by Starke in the same journal in the year 1896. 

* For a defense of the psychological method in the study of the social sciences 
see an article by M. Beudant, in the "Revue du Droit public," 1896, vol. V, pp. 
434-456. Beudant's views are criticised by M. Worms (ibid., vol. VI, pp. 66-70) 
and the latter's reply is in turn answered by Beudant (ibid., pp. 469-475). See also 
Le Bon, "Lois psychologiques de I'Evolution des Peuples"; Baldwin, "Psychology 
of Social Organization" in the "Psychological Review," vol. XIV, p. 482; Ward, 
"Psychic Factors of Civilization," p. 299; Tarda, "Lois de I'lmitation," especially 
ch. 2. 

' See Georg Meyer, "The Development of Political Science in the German 
Universities" in Lexis, "Die deutschen Universitaten," vol. I; also Jellinek, " Recht 
des mod. Staates," bk. I, ch. 2, tit. 6 (Die juristische Methode in der Staatslehre). 



26 POLITICAL SCIENCE 

pure logic and reason/ The state as an organism of growth 
and development, however, cannot be understood without 
a consideration of those extra-legal and social forces which 
lie back of the constitution and which are responsible for 
many of its actions and reciprocal reactions. Any view, 
therefore, which conceives the state merely as an institu- 
tion of public law is as narrow and fruitless as the Hegelian 
doctrine which goes to the opposite extreme and considers 
it merely as a moral entity.^ 
The Com- The Comparative method, first employed by Aristotle, 
M-thoY later by Montesquieu and still more recently by De Tocque- 
ville, Laboulaye, Bryce, and others, aims through the study 
of existing politics or those which have existed in the past 
to assemble a definite body of material from which the 
investigator by selection, comparison, and elimination may 
discover the ideal types and progressive forces of political 
history. Only those states which are contemporaneous in 
point of time, as Jellinek remarks, and which have a com- 
mon historical basis (Boden) and common historical politi- 
cal and social institutions may be compared with advan- 
tage. The comparative method, observes M. Saleilles, a 
noted French publicist, discovers the "general current" 
which runs through the whole body of constitutions and 
upon which experience has set the stamp of approval. " Ce 
courant general,'' he declares, ^^ on le decouvre par V etude 

^ " Recht des mod. Staates," p. 49. For more detailed studies of the juridical 
method see JeUinek, "System der subjektiven offentlichen Rechte," p. 21 et seq., 
and Deslandres, op. cit. See also Michoud, "Theorie de la Personnalite morale." 
An excellent example of the use of the juridical method is found in Laband's 
brilliant study of the German Empire, "Staatsrecht des deutschen Reiches." This 
method, as Laband states it in the preface to his treatise, is that of "analysis of public 
law relations, the establishment of the juristic nature of the state, the discovery of gen- 
eral superior juridical principles and the deduction therefrom of conclusions." For 
a juristic conception of the nature of the state see his statement regarding the nature 
of the German Empire in the preface to his work. 

^ For a criticism of the juridical method see Deslandres, op. cit., pp. 108, 115. 
For a defense of it see Combothecra, "La Conception juridique de I'Etat," and Sari- 
polos, "La Democratie et I'Election Proportionnelle." 



THE METHODS OF POLITICAL SCIENCE 27 

critique de chacune des legislations etrangeres envisagees au 
point de vue economique et social, le recherche des points de 
contact susceptibles de correspondre a un courant d' evolution 
commun a plusieurs pays, la determination d'un ou de 
plusieurs types juridiques vers lesquels doive s'orienter la 
politique juridique des differents pays a etat social sensible- 
me?it similaire." * The danger of the comparative method 
Hes in the HabiHty to error to which it is susceptible in 
practice, since, in the effort to discover general principles, 
the diversity of conditions, due to different circumstances, 
such as the temperament and genius of the people, economic 
and social conditions, moral and legal standards, political 
training and experience, are apt to be ignored or overlooked. 
J. S. Mill has undertaken to show that the comparative 
method may assume several forms, the "most perfect" of 
which is the process of difference by which two polities iden- 
tical in every particular except one are compared with a 
view to discovering the effect of the differing factor. Thus 
two states are compared which are similar as regards their 
natural wealth, legal systems, racial conditions, etc., but 
one of which maintains a restrictive trade system. If, 
therefore, one is found to be prosperous and the other not, 
a general conclusion is postulated with regard to the effect 
of restrictive commercial policies upon the national pros- 
perity. The m^ethod of indirect difference compares two 
classes of " instances " which agree in nothing but the pres- 
ence of a factor on the one side and its absence on the 
other. Thus one state which maintains a protective system 
may be compared with two or more states which have noth- 
ing in common but a free trade policy. By the method of 
agreement two polities wholly different with the exception of 
two common factors may be compared. Thus two states 
agreeing in no particular except in having a restrictive trade 
system and in being prosperous are compared with a view 

^ "Conception et Objet de la Science du Droit compare," in "Le Bulletin de la 
Society legislative comparee " for 1900. 



28 POLITICAL SCIENCE 

to establishing a connection between the restrictive policy 
and the prosperity. Like the method of difference, it is 
inadequate because its results are likely to be affected by 
extraneous circumstances, or, as Bain says, by a "plurality 
of causes with an intermixture of effects." ^ 
The What is really a particular form of the comparative 

Historical jjiethod is the historical method, for the facts relating to 

Method . . . . ° 

past polities have little value for political science until they 
have been subjected to the several processes of treatment 
which, as stated above, may be comprehended under the 
general term " comparison." It is almost a commonplace 
to-day to affirm the necessity of historical study as a basis 
for the scientific investigation of political institutions 
which have historical backgrounds. They can be fully 
comprehended only through a knowledge of their past; 
how they have developed, how they have become what 
they are and to what extent they have responded to the 
purposes for which they were originally destined.^ The 
maxim that constitutions grow instead of being made 
would have no meaning apart from this truth. The his- 
torical method, says Sir Frederick Pollock, "seeks an ex- 
planation of what institutions are and are tending to be, 
more in the knowledge of what they have been and how they 
came to be what they are, than in the analysis of them as 
they stand." ^ It brings in review the great political 
movements of the past, traces the organic development of 
the national life, inquires into the growth of political ideas 
from their inception to their realization in objective in- 
stitutions, discovers the moral idea as revealed in history 
and thereby points out the way of progress.* M . Deslandres, 

* " Deductive and Inductive Logic," p. 565. Sidgwick is an ardent believer in the 
comparative method. " PoHtical science," he says, "aims at bringing together for 
comparison societies similar in their political characteristics, however widely sepa- 
rated in time." "Development of European Polity," p. 3. 

' For a discussion of the nature and value of the historical method, see Jellinek, 
op. cit., ch. 2, tit. 5. ^ "History of the Science of Politics," p. 11. 

* Compare Bluntschli, "AUgemeine Staatslehre," bk. I, ch. 2. 



THE METHODS OF POLITICAL SCIENCE 29 

in his work, "La Crise de la Science politique et le Probleme 
de la Methode," concludes his study of the whole problem 
of methodology with the following estimate of the his- 
torical method: ''Puis, si fai fait appel a plusieiirs dis- 
ciplines pour constituer la methode de la science politique, 
j'ai mis tant au premier rang Vhistoire. Ce sont done des 
etudes dliistoire constitutionnelle, que fappelle de tons mes 
vceux, et vers lesquelles je voudrais orienter ceux qui compren- 
nent que la science politique est faite pour la vie. Car Vhis- 
toire, c'est la science de la vie et cest V element solide, sans 
laquelle la science politique ne peut etre que fragile et hasar- 
deuse.'' ^ 

What Professor Seeley calls the "irresistible tempta- 
tion to mix up what ought to be with what is" finds an 
illustration in the ideas of Sidgwick and Pollock (which 
were also the ideas of Plato and Aristotle), according to 
which the main object of political science is the discovery of 
the perfect or ideal state. To realize this purpose, political 
science must first proceed to inquire what is the end of the 
state, and having satisfactorily answered this question, must 
ascertain what institutions and laws are best adapted for the 
attainment of this end. Seeley criticises this method as un- 

' p. 256. A less favorable opinion of the historical method is held by Sidgwick, 
who maintains that the primary aim of political science is to determine what ought 
to be so far as the constitution and action of government are concerned and that this 
end cannot be discovered by a historical study of the forms and functions of govern- 
ment. "I do not think," he says, "that this historical method is the one to be primarily 
used in attempting to find reasoned solutions of the problems of practical politics." 
Sidgwick, however, concedes that the historical method has a place in the science of 
the state. "By means of it," he says, "we can ascertain the laws of practical evolution 
and thus forecast, though dimly, the future. From it we may obtain some notion of the 
limits within which any practicable ideal is coniined and the kind of society and cir- 
cumstances for which the political institutions of the future will have to be adapted." 
" Lastly," he says, " we may learn, partially at least, which of the elements and char- 
acteristics of our own political society are likely to increase and become more impor- 
tant as time passes and which are likely to decrease and become less important." 
"Development of European Polity," p. 5; also "Elements of Politics," pp. 7-14. Cf, 
also Montague, "Limits of Individual Liberty," p. 83, who says, "The true method is 
the historical. . . . History alone can supply the material for a science of society." 



3° 



POLITICAL SCIENCE 



natural and fruitless. Instead of beginning with an inquiry 
into the purpose of the state and the characteristics of the 
best state, he would proceed, first, with classifying the states 
which he wished to study; second, with analyzing the struc- 
ture of a particular state and distinguishing the functions 
of its several organs; third, with tracing its growth and 
development, noting any abnormal conditions in its life 
history; and, fourth, with philosophizing upon the nature 
of the state in general. The vast mass of facts collected 
by different observers must be subjected to rigid scientific 
tests. "We must," he says, "think, reason, generalize, de- 
fine, and distinguish; we must also collect, authenticate, 
and investigate. If we neglect the first process, we shall 
accumulate facts to little purpose, because we shall have no 
test by which to distinguish facts which are important 
from those which are unimportant; and, of course, if we 
neglect the second process, our reasonings will be baseless 
and we shall but weave scholastic cobwebs." ^ 

V. RELATION OF POLITICAL SCIENCE TO OTHER SCIENCES^ 

The "Ai- Political science is not the only science which deals with 
Political "^^^ ^^ organized society, for, as we have seen, the state 
Science manifests itself under the forms of a social as well as a po- 
litical organism and indeed is not without a psychical and 
a physical element. Although an autonomous science in 
the sense that it is not a mere discipline of some other 
science, it does not stand entirely unrelated to other 
sciences any more than the state stands isolated in the 
universe of phenomena. We can no more understand 
political science, as the science of the totality of state 

' "Introduction to Political Science," p. 19. 

* For a more detailed consideration of this subject than is given in the present 
chapter see two articles by the writer entitled "The Relations of Political Science, " 
in the " American Journal of Sociology "for November, 1906; and "The Relation of 
Political Science and Ethics," in the " International Journal of Ethics " for January, 
1907. 



RELATION TO OTHER SCIENCES 31 

phenomena, without a knowledge of the alHed sciences 
or disciplines, than we can comprehend biology without 
chemistry, or mechanics without mathematics/ Paul Janet, 
a noted French writer, has well said that political science is 
"closely connected with political economy or the science of 
wealth; with law, either natural or positive, which occu- 
pies itself principally with the relations of citizens one to 
another; with history, which furnishes the facts of which 
it has need; with philosophy, and especially with morals, 
which gives to it a part of its principles." ^ Other writers, 
like Jellinek, have treated geography, physical anthro- 
pology, ethnology, psychology, and ethics as among the 
studies auxiliary to political science.' Formerly there 
was a disposition to exaggerate and emphasize to their 
common detriment the independence of each branch of 
knowledge, but the tendency of modern thought is to accen- 
tuate the relations instead of the differences. In this con- 
nection Sidgwick has aptly remarked that it is for the good 
of any department of knowledge or inquiry to understand 
as thoroughly as possible its relation to other sciences and 
to see clearly what elements of its reasonings it has to take 
from them and what in its turn it may claim to give 
them." 

First of all, political science touches at many points Relation 
sociology, which may be described as the fundamental sociology 
social science. As has been well said, the political is em- 
bedded in the social, and if political science remains distinct 
from sociology, it will be because the breadth of the field 
calls for the specialist, and not because there are any well- 

' Compare the views of Jellinek on this point; "Recht des mod. Staates," bk. I, 
ch. 4, tit. I; also Von Mohl, "Geschichte und Litteratur der Staatswissenschaften," 
vol. I, p. I ; and Zacharia, "Vierzig Biicher vom Staate," vol. I, bks. 7-8, where the 
relation between political science, mechanics, statistics, and chemistry is discussed 
at length. 

* Art. "Politique," in Block's " Dictionnaire de la Politique," vol. II, p. 576. 

* Op. ciL, pp. 72-120. 

* "Relation of Ethics to Sociology," " Int. Jour, of Ethics," vol. X, p. 8. 



32 



POLITICAL SCIENCE 



The Re- 
spective 
Domains 
of Soci- 
ology and 
Political 
Science 



defined boundaries marking it off from sociology.' While, 
however, the two sciences touch at many points, so that 
there are no natural boundaries between them, their spheres 
have been pretty definitely differentiated for purposes 
of scientific investigation. It is well, therefore, to recog- 
nize that the domains and the problems of the two sciences 
are by no means the same. 

In general, we may say that sociology Is concerned with 
the scientific study of society viewed as an aggregate of 
individuals (the social aggregate) or, as has been said, it is 
the "science of men in their associated processes";^ while 
political science deals with the political aspects of a 
particular portion of society viewed as an organized 
unit. Political science is concerned with one form only 
of human association, namely, the political; it has, there- 
fore, a narrower and more restricted field, and begins 
much later with the life of the race than does sociology. 
In sociology the unit of investigation is the socius, that Is, 
the individual viewed not merely as an animal and a con- 
scious being, but also as a neighbor, a citizen, a coworker, 
in short, a social creature.^ In political science the unit 
of study Is the state as distinct from the nation, the tribe, 
the clan, the family, or the individual, though not uncon- 
nected with them; that Is, Its primary subj?ct is a definite 
portion of society which manifests, In a comparatively 
high degree, a political self-consciousness and which has 
become organized politically. 

' Ross, "Foundations of Sociology," p. 22. For an illuminating discussion of the 
relations of sociology with other sciences, particularly with politics and economics, 
see Small, "American Journal of Socijlogy, " July, 1906, pp. 11-31. 

* Small, "General Sociology," p. 7. 

* Compare Giddings, "Elements of Sociology," p. 11 ; Small, "American Journal 
of Sociology," January, 1900; Ward, "Popular Science Monthly," June, 1902. 
Gumplowicz, an Austrian economist and sociologist, maintains that the group in- 
stead of the individual is the unit of sociological investigation. He has worked out 
an interesting sociological theory of the state which considers social groups instead 
of " free and equal" individuals the constituent elements of the state. See his "Die 
sociologische Staatsidee," p. 52; also his "Sociologie und Politik," pp. 53-58. 



RELATION TO OTHER SCIENCES 



33 



In the second place, political science is closely related to Relation 
history. It is, as Jellinek remarks, almost a commonplace History 
to-day to affirm the necessit}^ of historical study as a basis 
for a proper understanding of institutions, whether they be 
political, legal, or social/ The political scientist should 
study, not only the nature of political institutions, but how 
they have developed and to what extent they have fulfilled 
the purposes of their existence. History furnishes us in a 
great measure the materials for comparison and induction. 
This is especially true of political history, which concerns 
itself with the formation of states, their growth, and their 
decline. The relationship was tersely expressed by the 
late Professor Seeley, who said "political science without 
history is hollow and baseless; or to put it in rhyme: 
history without political science has no fruit; and political 
science without history has no root."^ 

While history furnishes much of the data for political Problem of 
science it is not true, as Freeman once declared, that science^ 
history is past politics or that politics is present his- 
tory. Not all of history is "past politics." Much of it — 
like the history of art, of science, of inventions, discoveries, 
military campaigns, language, customs, dress, industries, 
religious controversies — has little, if any, relation to poli- 
tics and affords no material for political investigation.' 
On the other hand, not all political science is history. 
Much of it is of a purely philosophical and speculative 

*"Recht des mod. Staates," p. 41. "Die heschreihende Grundlage aller Social- 
wissenschnft, auch der Staatswissenscliaft, ist die Geschichte, welche die sociale That- 
sachen in ihrem historischen Verlanfe fest- und darstellt sotvie deren dussere tirid 
innere Verkniipfung nachweist." Op. cit., p. 8. 

^ "Introduction to Political Science," p. 4. Compare the following from Lord 
Acton: "The science of politics is the one science that is deposited by the stream of 
history like the grains of gold in the sands of a river;" also "the student of history 
is a politician with his face turned backward." 

' We have, as Professor Small observes, " histories of everything from civilization 
to coinage — histories of church doctrine, military tactics, language, painting, prosti- 
tution, and even of the devil " (" American Journal of Sociology," July, 1906, p. 18). 
It would, of course, be preposterous to assert that such "history" is "past politics." 
POL. SCI. — 3 



34 POLITICAL SCIENCE 

character, and cannot therefore be assigned to the category 
of history. The function of history is to narrate and inter- 
pret a succession of events; to discover how institutions 
have persisted and changed from generation to generation ; 
to trace tendencies and laws of growth. It is not restricted 
in its sphere to those parts of society which manifest po- 
litical consciousness and which have received political 
organization, but deals with the record of man prior to 
as well as subsequent to the organization of the state. 
The function of political science, historically considered, 
is to explain political institutions, and it is concerned only 
with that part of history which is capable of throwing light 
upon their present character. According to certain writ- 
ers, its principal problem is the teleological one of deter- 
mining what ought to he, so far as the constitution and 
functions of government are concerned, while history is 
concerned with what has been} Thus, although their 
problems are distinct, they have a common subject in the 
phenomena of the state, and therefore their spheres touch 
at many points and overlap at others. To fully compre- 
hend political science in its fundamental relations we must 
study it historically, and to interpret history in its true sig- 
nificance we must study that politically. As studies they 
are therefore mutually contributory and supplementary. 
"Politics are vulgar," said Professor Seeley, "when not 
liberalized by history, and history fades into mere litera- 
ture when it loses sight of its relation to politics."^ Sepa- 
rate them, says Burgess, and the one becomes a cripple, 
if not a corpse, the other a will-of-the-wisp.^ Seeley con- 
ceived history to be the name of the residuum which is 
left when one group of facts after another has been taken 

* Sidgwick, "Elements of Politics," p. 7; also " Development of European 
Polity," p. 5. 

^"Introduction to Political Science," p. 4. 

^ "Relation of History to Political Science," Annual Report American Historical 
Association, 1896, vol. I, p. 211. 



RELATION TO OTHER SCIENCES 35 

possession of by some science. Ultimately, he says, 
a science will take possession of the residuum, and this 
science will be political science. Many of the facts of 
history, he points out, are no longer recorded in historical 
treatises, but have been appropriated by other sciences. 
Thus the facts of the past relating to meteorology, biol- 
ogy, hygiene, surgery, and various other sciences and arts 
are not recorded in historical, but in scientific treatises. 
Physiology has taken possession of a definite group of his- 
torical facts; pathology, of another; political economy 
is appropriating the facts of industry; jurisprudence, of 
law; etc. If this process of appropriation continues, all 
the facts of history in the end will be swallowed up.^ Al- 
ready historians deal meagerly with the facts regarding the 
phenomena of the sciences and arts, contenting themselves 
with referring the reader to some special treatise for infor- 
mation. 

With political economy, — or economics, to use the more Relation 
modern term, — political science is closely related ; indeed, caiEcon- 
it is classed as a branch of political science by at least one °™y 
noted economist.^ It was first called "political" economy 
by the Greeks, and was defined by them as the art of pro- 
viding revenue for the state. ^ Senior remarks that as late 
as the eighteenth century political economy was regarded 
as a branch of statesmanship particularly by the physio- 
crats, and that those who assumed the name of political 
economists avowedly treated, not of wealth, but of govern- 
ment.* His own conception of the scope of political 
economy was affected by this view, and he laid it down as a 
principle that this science involved a "consideration of the 
whole theory of morals, of government, and of civil and 
criminal legislation." 

' op. cit., p. 12. 

^ Dugald Stewart, " Lectures on Political Economy," vol. I, p. 24. 
^ Seligman, "Principles of Economics," p. 7; Hadley, "Relation between 
Politics and Economics," Publications of the American Economic Association, 1899. 
* "Political Economy," p. i. 



36 



POLITICAL SCIENCE 



Interac- 
tion of 
Politics 
and Eco- 
nomics 



The first systematic English writer on the subject, Sir 
James Stewart, in his "Inquiry into the Principles of Po- 
litical Economy" (published in 1767), enunciated this 
view when he said: "What economy is in the family, 
political economy is in the state. . . . The great art, 
therefore, of political economy is first to adapt the differ- 
ent operations of it to the spirit, manners, habits, and 
customs of the people, and afterward to model these 
circumstances so as to be able to introduce a set of 
new and more useful institutions." ' Nine years later, 
Adam Smith published his "Inquiry into the Nature 
and Causes of the Wealth of Nations," in which he stated 
the objects of political economy, "considered as a branch 
of the science of a statesman," to be two: first, to provide 
adequate "revenue or substance for the people or, more 
properly, to enable them to provide it for themselves"; 
and, second, to supply the state or commonwealth "with a 
revenue sufficient for the public service." "It proposes," 
he said, "to enrich both the people and the sovereign." ^ 

Without quoting further from the earlier writers, it is 
clear that they conceived economics to be a branch of the 
general science of the state. Writers of the present day- 
no longer hold to the earher conception, yet there is no 
difference of opinion among them concerning the existence of 
a close relationship of economics and politics as ancillary 
social sciences. Political and social life is obviously in- 
termixed with, and the activities and even the forms of 
government are profoundly influenced by, economic condi- 
tions. Conversely, there is a distinct interaction of poli- 
tics upon economics. The production and distribution of 

* Works, vol. I, pp. 2, 3. 

* Book IV, Introduction. It may not be out of place to mention that Smith, 
as a professor at Glasgow (1751-64), lectured on natural theology, ethical philosophy, 
jurisprudence, and political economy, indicating that these subjects were considered 
to be not only related, but actually complementary to each other. Compare Mill, 
"Political Economy," vol. I, p. 3; and Sidgwick, "The Principles of Political Econ- 
omy," pp. 14-16. 



RELATION TO OTHER SCIENCES 37 

wealth are to some extent determined by the existing forms 
of government/ The solution of many economic problems 
must come through political channels, while, on the other 
hand, some of the fundamental problems of the state 
have their origin in economic considerations. Thus tariff 
laws and trade restrictive acts, generally, are favored or 
opposed largely on economic grounds and to a great extent 
the whole question of the relation between government and 
liberty is at bottom an economic problem. The burning 
questions of present-day politics: government control of 
public utilities, the relation of the state to corporate enter- 
prise, and its attitude toward the whole question of capital 
and labor, are at the same time fundamentally questions of 
economics; indeed, the whole theory of government admin- 
istration is largely economic. 

■ It is no doubt true, says Nicholson, that the system of government "operates 
on economic facts," and that "economic history furnishes endless examples of the 
injurious effects of bad government." " Principles of Political Economy," p. 13. 



CHAPTER II 

THE NATURE OF THE STATE 

Suggested Readings: Bluntschli, "Allgemeine Staatslehre," bk. 
I, ch. i; bk. II, chs. 2-4; also his " Psychologische Studien liber 
Staat und Kirche," pp. 1-87; Bornhak, "Allgemeine Staatslehre," 
pp. 8-15; Burgess, "Political Science and Constitutional Law," vol. 
I, chs. 1-4; bk, II, ch. i; Carnazza-Amari, " Traite de Droit inter- 
national public," vol. I, pt. I, chs. I and 2; Duguit, " Droit constitu- 
tionnel," sees. 8-13; 20-22; also his "L'Etat, Les Gouvernants etLes 
Agents," ch. i; Fouillee, "La Science sociale contemporaine," chs. 2 
and 3; Funck-Brentano, "La Politique," ch. 2; Gumplowicz, " All- 
gemeines Staatsrecht," bk. I, chs. i and 4; Held, " Staatsrecht," ch. 
I; also his " System des Verfassungsrechts," ch. 6; Holland, "Ele- 
ments of Jurisprudence," ch. 4; Jellinek, "Recht des modernen' 
Staates," bk. II, ch. 6; also his " System der subjektiven offentlichen 
Rechte," pp. 12-41 ; Leacock, "Elements of Political Science," ch. i; 
Lecky, "Democracy and Liberty," vol. I, ch. 5; Leroy-Beaulieu, 
"The Modern State," chs. 1-5; McKechnie, "The State and the 
Individual," pt. I, ch. i; MacKenzie, "Introduction to Social Phi- 
losophy," ch. 3; Merignhac, "Traite de Droit int. pub.," vol. I, pp. 
1 17-154 ; Meyer, " Deutsches Staatsrecht," sees. 2 and 3 ; Mulford, 
" The Nation," ch. i ; Posado, "Tratado de Derecho Politico," vol. I, 
ch. i; Rehm, " Allgemeine Staatslehre" in Marquardsen, Einlei- 
timgsband II, sees. 3-5; Rousseau, "Contrat social," bk. Ill, ch. 10; 
Bruno Schmidt, "Der Staat"; Richard Schmidt, "Allgemeine 
Staatslehre," vol. I, sec. 25; Schulze, "Deutsches Staatsrecht," vol. I, 
ch. I ; Seeley, "Introduction to Political Science," lects. I and 
II ; Seydel, "Grundziige einer allgemeine Staatslehre," pp. 1-18; 
Spencer, "Principles of Sociology," vol. I, pt. II, chs. 3, 4, 7-9; 
Treitschke, "Politik," vol. I, sec. I ; Waitz, "Grundziige der Poli- 
tik," pp. 1-20; Willoughby, "The Nature of the State," chs. i and 
2 ; Woolsey, "Political Science," vol. I, pt. II, chs. i and 2; 
Worms, "Organisme et Societe," pts. II and III. 

I. DEFINITIONS AND DISTINCTIONS 

Definitions of the state, as the German writer Schulze 
has remarked, are innumerable, almost every author hav- 
ing his own, and scarcely any two being alike/ 

* "Deutsches Staatsrecht," vol. I, p. 15. 
38 



DEFINITIONS AND DISTINCTIONS 39 

The English writer Holland defines a state as a "numer- Defini 
ous assemblage of human beings, generally occupying a thTstete 
certain territory, among whom the will of the majority or 
of an ascertainable class of persons is by the strength of 
such a majority or class made to prevail against any of 
their number who oppose it." ^ Hall, viewing the state 
primarily as a concept of international law, says, "The 
marks of an independent state are that the community 
constituting it is permanently established for a political 
end, that it possesses a defined territory and that it is inde- 
pendent of external control." ^ 

The, German writer Seydel says, "A state comes into 
existence whenever a number of men who have taken pos- 
session of a part of the earth's surface unite themselves to- 
gether under a higher will." ^ Grotius defined the state 
(civitas) as a "perfect society of free men united for the 
sake of enjoying the advantages of right and the common 
utility." ^ Vattel, in almost the same language, defined it 
as a "body politic or society of men who seek their well- 
being and common advantage in the combination of their 
forces."^ Burgess defines the state as a "particular 
portion of mankind viewed as an organized unit,"" which 
is substantially the same as the definition given by Blunt- 
schli, who says, "The state is the politically organized people 
of a definite territory." ^ The United States Supreme 

' "Elements of Jurisprudence " (6th ed.), p. 40. 

^ "International Law " (3d ed.), p- 18. 

' "Grundziige einer allgemeine Staatslehre," p. i ; see also p. 4. 

* "De Jure Belli et Pacis," bk. I, ch. i, sec. 13 (Whewell's ed., p. 18). 

* "Droit des Gens," vol. I, sec. i. Wheaton defines the state in substantially 
the same words, "Elements of the Law of Nations," ch. 2, sec. 2. Grotius's, 
Vattel's, and Wheaton's definitions are drawn from Cicero's definition of the 
respuhlica as a "numerous society united by a common sense of right and a mutual 
participation in advantages," " De Republica, " bk. I, 25. For a criticism of 
Cicero's definition, see Calvo, "Droit int. theoriqueet pratique," vol. I, p. 168, and 
Pradier-Fodere, "Traite de Droit int. pub.," vol. I, p. 146. 

' "Political Science and Constitutional Law," vol. I, p. 50. 

^"Allgemeine Staatslehre," vol. I, p. 24; also his " Psychologische Studien," 
p. 22. 



40 THE NATURE OF THE STATE 

Court in an early case defined a state as "a body of free 
persons united together for the common benefit, to enjoy 
peaceably what is their own and to do justice to 
others." ' 

Phillimore says a state for all purposes of international 
law is "a people permanently occupying a fixed territory, 
bound together by common laws, habits, and customs into 
one body politic, exercising through the medium of an or- 
ganized government independent sovereignty and control 
over all persons and things within its boundaries, capable 
of making war and peace and of entering into all inter- 
national relations with the communities of the globe." ^ 
Other writers have emphasized the spiritual and moral 
nature of the state to the neglect of its other aspects. 
Thus Hegel defined it as "the incorporation of the objec- 
tive spirit " {die Verkorperung des objektiven Geistes) ; while 
Pufendorf conceived it to be simply "a moral person 
endowed with a collective will." Such definitions are 
manifestly based on a one-sided view of the state and con- 
sequently bring out but one of its many characteristics.' 

' Chisholmi'. Ga., 2 Dall. 456. 

* "International Law" (3d ed.), vol. I, p. 8^ 

' Other definitions are the following: "The state is the mastery over land and 
people which are independent of every earthly power," Bornhak, "AUgemeine 
Staatslehre," p. 9; "The state is the bodily form of the spiritual community of the 
nation," Savigny, "System des romischen Rechts," vol. I, p. 22; "A state is an ag- 
gregation of families and their common possessions ruled by a sovereign power ac- 
cording to reason," Bodin, " De Republica," bk. 6 ; "When a people possessing a fixed 
home unite themselves under a common and supreme legislative, executive, and judi- 
cial power which fixes and guarantees their rights, they form a state," G. F. de Martens, 
"Precis du Droit des Gens," vol. I, sec. 3; "A state is a certain number of men and 
of families who, being united and having a fixed home, associate themselves and sub- 
mit themselves to a common chief with the intention of li\-ing together for the safety 
of all," Kluber, "Droit des Gens," sec. 20; "The state is a permanent association of 
men united and governed by a common will for the purpose of providing for their 
common physical and moral necessities," HefFter, "Droit int. de I'Europe," sec. 15; 
"The state is a permanent unitary organism whose arrangements, directed by a 
collective will as well as supported and executed by common strength, has for its 
problem the promotion of the life purposes of a definite population," Von Mohl, "En- 
cyklopadie der Staatswissenschaften," p. 71; "The state is a group of men more 



DEFINITIONS AND DISTINCTIONS 41 

If one more definition may be added to the long list 
already given, I would offer the following: The state, as a 
concept of political science and constitutional law, is a 
community of persons more or less numerous, permanently 
occupying a definite portion of territory, independent of 
external control and possessing an organized government to 
which the great body of inhabitants render habitual obedi- 
ence. The essential constituent elements, political, phys- 
ical, and spiritual, of the modern state are all brought out 
in this definition. They are: first, a group of persons act- 
ing together for common purposes; second, the occupation 
of a determinate portion of the earth's surface which con- 
stitutes the home (or, as the Germans say, the Boden) of 
the population ; third, independence of foreign control ; and 
fourth, a common supreme authority or agency through 
which the collective will is expressed and enforced.^ 

or less numerous, united under common institutions and under the same sovereign," 
Laveleye, "Le Gouvernement dans la Democratie," vol. I. p. 19; "A state is an inde- 
pendent community organized in a permanent manner in a definite territory," 
Rivier, "Principes du Droit des Gens," vol. I, p. 45; "The state is the union of a 
living people in a collective personality {gesamte Personlichkcit) under a supreme 
power and a definite constitution for the realization of all common purposes, 
especially the establishment of the legal order (Herrslellung des Rechtsordnung)," 
Schulze, "Deutsches Staatsrecht," vol. I, p. 19. For a somewhat similar definition, 
see Jellinek, " Recht des mod. Staates," p. 173. 

' Compare Hall ("International Law," p. 21), who says, "The simple fact that a 
community in its collective capacity exercises independent and exclusive control over 
all persons and things within the territory occupied by it, that it regulates its externa! 
conduct independently of the will of any other community and in conformity with 
the dictates of international law, and finally that it gives reason to expect that its 
existence will be permanent, are sufficient to render it a person in law." See also 
Bornhak (" Allgemeine Staatslehre," p. 8), who says " three.factors are necessary to 
the concept of the state : a definite territory, a population attached thereto, and the sub- 
jection of both to a supreme magistracy ; " also Seydel, "Grundziige einer allgemeinen 
Staatslehre," p. 4; Pradier-Fodere, "Traitede Droit int. pub.," vol. i, p. 152; Jellinek, 
op. ciL, p. 137 ; and Carnazza-Amari, " Droit int. pub.," vol. I, p. 196. Willoughby 
("Nature of the State," p. 4) enumerates the essential elementsof the state as : "first, 
a community of people socially united ; second, a political machinery termed a govern- 
ment and administered by a corps of officials termed a magistracy and, third, a body of 
rules or maxims, written or unwritten, determining the scope of this public authority 
and the manner of its exercise." Hauriou enumerates the constituent elements of 



42 



THE NATURE OF THE STATE 



Ancient 
Concep- 
tions of 
the State 



Various 
Meanings 
of the 
Term 
"State" 



The term by which the ancient Greeks designated the 
state was polls {ttoXls:), the modern EngHsh equivalent 
of which is "city." They never grasped the idea of the 
territorial or country state. Their political science was, as 
has been said in the preceding chapter, the science of city 
states, for it was with the city that their state life was iden- 
iified. To the Romans likewise the state was the civitas 
or respublica. To them the Roman state was identical 
with the city of Rome, Italy and the provinces being only 
dependencies of the mother city. The conception of the 
state as embracing non-urban land or country territory 
made its appearance slowly during the Middle Ages. In 
Germany the coming into use of such terms as Landtag, 
Landesstaatsrecht and Landesgesctz indicated the new con- 
ception of the state as a territorial instead of an urban 
commonwealth.^ 

The word "state" (stato) first appeared in Italian po- 
litical literature and presently came to be applied, not to the 
city community alone, but also to the country territory 
embraced within the jurisdiction of the governing city.^ 
In the course of the sixteenth and seventeenth centuries 
the words state, Hat, Staat, appeared in English, French, -T-id 
German literature, though in France Bodin as late as 1576 
preferred the term "republic" (republique) as the subject 
of his famous treatise. 

Regarding the meaning of the term "state," we may 
observe that it has a popular signification and a meaning 
technical to political science. In the popular sense the 
term is often used synonymously with "nation," "society," 



the state as (i) population, (2) territory, and (3) a certain degree of civilization or 
political consciousness including a fair degree of economic development. " Droit 
administratif," pp. 6-7. According to Rivier the essential elements are (i) territory 
and population, (2) a collective will and government, (3) independence and perma- 
nence. "Principes du Droit des Gens," vol. I, p. 46. 

* Cf. Jellinek, "Recht des mod. Staates," p. 125. 

^ See Nys, "L'Etat et la nation de I'fitat," "Revue de Droit int.," 1901, pp 
420 ff. 



DEFINITIONS AND DISTINCTIONS 43 

"country," "power," "government," etc/ Technically 
it has a more precise and exact meaning which is not indi- 
cated by any of the above terms. It is very commonly 
employed to express the idea of the collective action of soci- 
ety as contradistinguished from individual action, as when 
we speak of "state" aid to education, "state" interven- 
tion in industrial affairs, etc. In states having the federal 
system of government the term possesses a double signifi- 
cation, being employed to designate the federation as a 
whole and also the autonomous political communities 
composing it. A still narrower and obviously incorrect 
use of the term is its employment to designate non-autono- 
mous provinces of monarchical states as is done in Prussia 
and Austria. The effect of this somewhat loose dualistic 
employment of the term to designate both the real state and 
its subdivisions is to introduce confusion into the termi- 
nology of political science, and misconceptions into political 
thinking.^ It is unfortunate that neither the English, the 
German, nor the French language contains a suitable term 
by which the component members of federal unions may 
be designated and a different one for describing the larger 
commonwealth of which they are the constituent parts. 
Finally, the fact that the state is both a concept of consti- 
tutional law and of international law has led to additional 
ambiguity of usage. 

In the next place, we must distinguish between the terms The Dis- 
" state" and "government" often employed by political |,'"tween 
writers as if they were identical in meaning. In reality state and 

■' » ./ Govern- 

' Rousseau, in his " Le Contrat social " (bk. I, ch. 6), suggests the employment of ment 
the term "state" when the commonwealth is conceived as passive; the term " sover- 
eign" when it is thought of as active; and the term "power" when it is compared 
with its equals. 

^Burgess, in his "Political Science and Constitutional Law," dwells upon the 
confusion and inaccuracy resulting from this dual use of the term "state," and seeks 
to avoid it himself by designating the individual members of federal unions as "com- 
monwealths" and by restricting the use of the word "state" to the federation as a 
whole. Cf. also Woolsey, "Political Science," vol. I, p. 141, and Jellinek, op. cit., 
p. 129. 



44 THE NATURE OF THE STATE 

they represent widely different concepts and upon the 
recognition of the distinction between them depends the 
true understanding of some of the most fundamental ques- 
tions of political science. As has already been remarked, 
the state is a sovereign community, politically organized 
for the promotion of common ends and the satisfaction of 
common needs, while the government is the collective name 
for the agency, magistracy, or organization, through which 
the will of the state is formulated, expressed, and realized. 
The government is an essential element or mark of the state, 
but it is no more the state itself than the brain of an animal 
is itself the animal, or the board of directors of a corporation 
is itself the corporation. In earlier times, it was not un- 
common to identify the ruling sovereign with the state and 
the famous saying attributed to Louis XIV {Vetat, c'est 
moi) has often been quoted as an example of such identi- 
fication. If the government and state were identical, 
the death of the reigning sovereign or the overthrow of the 
government would necessarily interrupt, if not destroy, the 
continuity of the state life.^ But as a matter of fact 
changes of governmental organization do not affect the 
existence of the state. States possess the quality of perma- 
nence. Governments, on the contrary, are not immortal; 
they are constantly undergoing change as a result of revolu- 
tion, of the extinction of dynasties, or through legal pro- 
cesses, yet the state continues unimpaired and unaffected. 
Governments are mere "contrivances," to use the language 
of Professor Seeley, through which the state manifests 
itself. They possess no sovereignty, no original unlimited 
authority, but only derivative power delegated by the state 
through its constitution. To understand clearly, there- 
fore, the nature of each and the relation of one to the 
other we must avoid identifying them either in thought 
or treatment. 

^ Compare Jellinek, "Recht des mod. Staates," p. 140. 



STATE AND NATION 4$ 

II. STATE AND NATION; THE PRINCIPLE OF NATIONALITY 
IN THE ORGANIZATION OF STATES 

In the next place, the state must be distinguished from Distinc- 
the nation. Primarily the state, as has been said, is a legal Jjjjeen*' 
or political concept, while the nation, if the natural meaning state and 
suggested by the etymological derivation of the word 
(nasci, natio) be regarded, is a racial or ethnical concept. 
There is no necessary connection between the two, and the 
best writers never employ the terms synonymously and with- 
out discrimination. In reality a nation is not a portion of 
society politically organized ; that is, it is not a state, but in 
its perfect form it is a portion of society definitely separated 
from the rest of the world by natural geographical boun- 
daries, the inhabitants of which have a common racial ori- 
gin, speak the same language, have a common civilization, 
common customs and traits of character, and a common 
literature and traditions. This is, as has been said, the 
perfect nation, not the actual nation as it exists in the world 
to-day and which popular usage conceives it to be. Some 
authorities, however, do not consider all the elements men- 
tioned above as absolutely essential to the existence of a 
nation. Thus Burgess defines a nation as a population 
having a common language and literature, a common tra- The Marks 
dition and history, common customs and a common con- 0**^*^0° 
sciousness of rights and wrongs, inhabiting a territory of a 
geographic unity.* He does not seem to consider common 
descent or identity of race as an essential element but regards 
community of speech and geographic unity as the principal 
distinguishing marks. The French publicist, Pradier-Fodere, 
defines a nation as "the union of a society of inhabitants of 
the same country, speaking the same language, governed by 
the same laws, connected by identity of origin, physical char- 
acteristics, and moral dispositions, by community of interests 
and sentiments and by a fusion of existences acquired by the 

^ "Political Science and Constitutional Law," vol. I, p. 2. 



46 THE NATURE OF THE STATE 

lapse of centuries." ^ Again he says, "Affinity of race, com- 
munity of language, of habits, of customs and religion, are 
the elements which constitute the nation." ^ Calvo, in 
his work on "International Law," holds substantially the 
same opinion, emphasizing the fact that the idea of the na- 
tion is associated with origin or birth, community of race, 
community of language, etc.^ Community of race and 
language are undoubtedly the most usual and satisfactory 
tests for determining the existence of a nation.^ Identity 
of race implies kinship, while community of language sup- 
plies the medium through which the people understand one 

• "Traite de Droit int. pub.," vol. I, p. 125. See also his "Principes gencraux de 
Droit de Politique et de Legislation," p. 184 ff. Compare the definition of Carnazza- 
Amari, op. ciL, vol. I, p. 223: "A nation is a multitude of conational families 
spontaneously united under a free government and having fixed their abode on a 
determinate territory with the purpose of obtaining external respect for their 
personality." A state, he maintains, is an association resting upon force 01' arbi- 
trary action, while a nation is a state constituted according to nature, not in an 
artificial or violent manner; that is, an association of families having homogeneous 
interests and aspirations and constituting a national family. 

^ Ibid., p. 126. 

3 "Droit internat. theoriqueet pratique," vol. I, p. 169. A distinction, saysBlunt- 
schli, is sometimes made between nation and people. A nation, he says, is a " union of 
masses of men of different occupations and social strata in a hereditary society of 
common spirit, feeling, and race, bound together especially by language and customs, 
in a common civilization, which gives them a sense of unity and distinction from all 
foreigners, quite apart from the bond of the state." A " people" (Volk) he conceives 
to be "a society of all the members of a state united and organized in the state" 
("Allg^meine Stuatslehre," bk. II, ch. 2). In short, the distinction consists 
in the existence of pohtical unity in the latter and its absence in the former. Gum- 
plowicz (" Allgemeines Staatsrecht," ed. 1907, pp. 107-110) concurs with Bluntschli 
in attributing political unity to the "people," that is, in holding that there can be no 
"people" without a state. 

* Lecky, however, does not consider race a good test of the existence of a nation, 
especially when color is the test of the race, since color is an "obscure and deceptive 
guide." Often race elements, he points out, are so inextricably mixed that it is im- 
possible to separate them. Language and religion he considers a "deeper power" 
in determining national unities, yet he admits that there are many examples of dif- 
ferent creeds and languages successfully blended into one nationality. "Democ- 
racy and Liberty," vol. I, p. 5. For good discussions of this subject see Car- 
nazza-Amari, "Droit int. pub.," vol. I, pt. I, ch. 2; Fiore, "Droit int. pub.," 
vol. I, pt. I, ch. I ; Mancini, " De la Nationalite comme fondement du Droit des 
Gens," and Nys, "Droit international," voL I, sec. 2, ch. 2. 



STATE AND NATION 47 

another and become friends rather than strangers. Com- 
munity of language is also a powerful instrument of in- 
tellectual and social intercourse and opens the way for the 
development of a common political consciousness. Gum- 
plowicz, a noted European publicist, however, considers the 
test of a nation to be simply "community of civilization" 
(Kulturgemeinschaft) which expresses itself in a common 
language. Identity of speech and similarity of civiliza- 
tion, he declares, are the outgrowth of a common historic 
past rather than the result of a common ethnic origin. 
The ethnic origins of many modern nations, as he shows, are 
diverse and unknown and hence cannot be an infallible 
test. Thus the German, Italian, Spanish, and French 
"nationahties" were developed, not from a common stem, 
but from heterogeneous race elements. Yet each ulti- 
mately developed a common language and a common 
civilization, and these, rather than identity of race origin, 
are really the distinguishing marks of the nation in each 
casc.^ Community of religion was once considered an 
essential mark of the existence of a nation, but vAth the rise 
of religious freedom the influence of religion as a bond of 
national unity has largely disappeared.^ 

As has been stated above, the state and the nation are Non- 
rarely identical; in earlier times they were less fre- ll^^state 
quently so than now, A single state may in fact embrace and 
within its limits several nations or nationalities.^ Thus 

' "Allgemeines Staatsrecht," p. 11 1 ff. 

^ Pradier-Fodere, however, as we have seen in his definition above, considers 
community of religion as one of the constituent elements of the nation. So does 
Carnazza-Amari, op. ciL, vol. I, p. 236. 

^ The distinction between a "nation" and a "nationality" is not always easy to 
make. In general, we may say that a nation is a population of the same race and 
language, inhabiting the same territory and constituting the larger part of its popula- 
tion ; while a nationality is usually one of several distinct ethnic groups scattered over 
tne state and constitutirig but a comparatively small part of its whole population (cf. 
Burgess, op. cit., vol. I, p. 5 ; and Gumplowicz, " Allgemeines Staatsrecht," p. 124). 
Thus the English population in the United Kingdom constitutes a nation, while the 
Celtic element constitutes only a nationality. In the same way we may say that the 



48 THE NATURE OF THE STATE 

the English state embraces within its geographical boun- 
daries at least one nation and various nationalities, notably 
the Celts of Ireland, the French of lower Canada, the Dutch 
of South Africa, and others. The kingdom of Hungary 
includes Slav, Roumanian, Teutonic, and other nationalities. 
The Belgian state embraces in addition to its dominant 
French population a considerable Flemish element. Russia 
contains within its vast boundaries many diverse race 
elements: Slavs, Lithuanians, Finns, Tartars, Roumans, 
and others. Switzerland embraces parts of three nations : 
French, Germans, and Italians. The United States con- 
tains in addition to its Teutonic and African populations 
other important race elements such as the Germans, Scan- 
dinavians, Italians, and Irish, though none of these are suffi- 
ciently numerous, compact, or isolated, geographically, 
to constitute distinct ethnic unities. 

On the other hand, the limits of the state may be nar- 
rower than those of the nation, and hence several states 
or parts of states may be embraced within the same ethnic 
unity. Thus the French republic and the greater part of 
the kingdom of Belgium are embraced within the limits 
of the same nation. The greater part of the German 
Empire and parts of the Austrian and Swiss states are 
embraced within the Germanic nation, while the popula- 
tion of Central and South America is largely the same in 
ethnic origin and language, yet is spread over many states. 

It is evident, therefore, that not every state is a nation 
nor every nation a state; one is sometimes broader, some- 
negro population in the United States, the French population in Canada, the Polish 
element in the German Empire, constitute nationalities rather than nations. Laveleye, 
in his " Gouvernement dans la Democratie" (bk. II, ch. 3), distinguishes between a 
nation and a nationality as follows: "A nation is a group of men united under the 
same sovereignty," while "a nationality is a group of men united by identity of 
origin, race, language, or by community of traditions, history, and interests." A 
nation, he says, may embrace several nationalities, Austria, for example. But evi- 
dently he identifies nation and state by attributing political unity and sovereignty to 
the nation, while his conception of a nationality is identical with what we have defined 
as the nation. Cf. also Pradier-Fodere, " Traite," etc., vol. I, pp. 125-130. 



PRINCIPLE OF NATIONALITY 



49 



times narrower, in area, than the other, and hence there is 
frequent overlapping. The tendency of the last century 
has been in the direction of identification, that is, toward the 
organization of states with boundary Hues coincident in a 
general way with those of nations. This tendency rests on 
the great principle of nationality, which seeks to bring those 
populations having the same ethnic origin and language 
under the same political organization so as to constitute 
a single body politic.^ The principle does not, however, 
mean that every nation, however small, has an inherent 
right and a duty to organize Itself into a state, for obviously 
not every nation possesses the requisite population or the 
political capacity for creating and maintaining a state 
organization. It is generally agreed, for example, that the 
Celtic peoples of western Europe, as well as various nation- 
alities in southeastern Europe, together with certain peoples 
of Asia, have not given evidence of sufficient political ca- 
pacity to organize and maintain states. Politically weak 
and incapable peoples everywhere must submit to the 
guidance and tutelage of the stronger and more highly 
endowed nations, politically speaking; and some writers 
go to the length of maintaining that it is the duty of the 
latter, in the interest of the civilization of the world, to 
force state organization upon backward races by such 
means as in their judgment may be necessary to accom- 
plish the result, even to the extent of clearing their ter- 
ritories of their presence and of making it the abode of 
civilized man.^ 

Considerations of national unity and political stability The Prin- 
require that, so far as possible, the principle of nationality ^*P!f °* 
should be respected in the organization or reorganization of aiity in 
states; and the experience of the last century teaches that izatio?of" 
wherever it has been disregarded, as it was, for example, s****^ 
by the Congress of Vienna in 1815, when territories and 

* Compare Laveleye, " Gouvernement dans la Democratic," bk. II, ch. 3. 
^ Compare Burgess, op. cit., vol. I, p. 46; Bluntschli, op. cit., bk. II, ch. 4. 
POL. SCI, — 4 



50 THE NATURE OF THE STATE 

peoples were divided among the victorious powers without 
regard to race, nationality, religion, or antecedents, the re- 
sults have been disastrous and readjustments have become 
inevitable in the course of time. Wherever geographic and 
ethnic lines coincide, there is a strong impulse to political 
organization within these limits — that is, the nation tends 
to organize itself into a state. During the Middle Ages the 
principle of nationality played little part in the organization 
of states, and indeed it did not come to be fully accepted 
until comparatively recent times. During the nineteenth 
century it exerted a powerful influence upon the political 
readjustments which took place in Europe. It contributed 
to the political enfranchisement of Greece, Roumania, 
Servia, and Bulgaria, and ultimately to the independence 
of some of them; it brought about the unification of the 
German and Italian states; it led to the disruption of the 
unnatural union between Belgium and Holland, and to the 
rounding out along national lines of the boundaries of vari- 
ous other European states.^ It is to-day at the basis of 
some of the largest questions of European politics. It 
overtops all other questions in the politics of Austria-Hun- 
gary where the population is a conglomeration of different 
races, speaking different languages, having little common 
sympathy, and each animated by national aspirations of 
its own. In Austria, Bohemia demands national autonomy, 
the German element is struggling for supremacy of control, 
the Czechs are fighting for recognition of their language 
by the state, etc. In Hungary, the struggle between the 
various nationalities is intense, almost to the point of dis- 
ruption. The Magyars demand official use of their lan- 
guage in the army and in the civil service; the Slovaks, 
Poles, Ruthenlans, Serbs, Slowenians, Croatians, and other 
nationalities represent so many different ideals, tempera- 

' Compare La veleye, " Gouvernement dans la Democratie," bk. II, ch. 3. Laveleye 
quotes Napoleon as once saying, "The government which first raises the flag of na- 
tionality and becomes its defender will dominate Europe." Ibid., p. 53. 



PRINCIPLE OF NATIONALITY 51 

ments, and elements of dissension/ The principle of 
nationality is at the bottom of the Pan-Germanistic move- 
ment, which seeks to unite under a single state organization 
all the German-speaking populations of western Europe: 
the German Empire, Alsace, part of Lorraine, most of 
Switzerland, part of Holland and Schleswig, and part of 
Austria. It is at the foundation of the Pan-Slav movement, 
which would unite all the Slavs of eastern Europe under a 
common scepter: Poles, Slowenians, Moravians, Serbs, 
Czechs, and Croatians, now found in Prussia, Russia, Austria, 
Saxony, and Turkey.^ The same principle would bring to- 
gether the Scandinavian races: Norwegians, Swedes, and 
Danes; establish the independence of Finland; secure the 
autonomy of the Flemish population in Belgium ; give home 
rule to Ireland; and lead to a readjustment of the bounda- 
ries between France and Germany and between Italy and 
Austria. 

Nationality, which is but another name for national kin- Duty of 
ship, has been a powerful force in bringing into relation Jo^g^cure 
petty states and holding them together against the disin- Ethnic 
tegrating forces of sectionalism and particularism, while geneityin 
lack of it has been a potent cause of disruption in many jation^" 
states. Ethnic homogeneity coupled with geographic 
unity are undoubtedly among the most powerful factors 
in maintaining poHtical solidarity, and it should be the am- 
bition of every state to organize itself so as to secure these 
elements of national strength and stability. Struggling 
nationalities, according to some writers, should be en- 
couraged to separate themselves from unnatural unions and 
establish independent existences, rather than be suppressed 
as they were in Europe during the early nineteenth century.^ 
Whenever there are within the limits of a state several more 

^ Compare Gumplowicz, " Allgemeines Staatsrecht," pp. 136-156, on the nation- 
ality question in Austria-Hungary. 

^ See Pradier-Fodere, "Traite de Droit int. pub.," vol. I, pp. 130-131. 
^ Compare Lecky, "Democracy and Liberty," vol. I, p. 392. 



52 THE NATURE OF THE STATE 

or less populous nationalities, with widely different customs 
and degrees of civilization and especially when they consti- 
tute distinct geographic unities, the danger of dissension and 
of disintegration makes it worth while to consider whether 
the welfare of the peoples directly concerned and the civil- 
ization of the world would not be promoted by a voluntary 
division of the state and its reorganization along national 
lines. This has happened as a result of revolt and suc- 
cessful war many times in the history of the past, and is 
likely to happen again in the future/ In any case the state 
should strive by all proper means to render its population 
ethnically homogeneous and thereby remove one of the 
most potent sources of national discord. Some writers 
maintain that where the outlying provinces of a state ex- 
posed to the attacks of a dangerous neighbor are inhabited 
by an alien and disaffected nationality, the state is justified 
in adopting extreme measures to bring about their assimi- 
lation with the rest of the population, and may in case of 
necessity remove them bodily from the exposed dis- 
trict and deport them to other parts or distribute them 
throughout the state in such a way as to destroy their na- 
tional aspirations. This has been justified on the ground 
that with states, as with individuals, self-preservation is 
the first law of nature. It was upon considerations of this 
character that the Emperor Napoleon forced the use of the 
French language upon the German inhabitants of Alsace and 
that Prussia is to-day demanding the use of the German 
language in the schools of the province of Posen. Not 
widely different in principle is the present policy of the 
Emperor Francis Joseph in insisting upon the use of a 
common language in the army of Austria-Hungary, and of 
the United States in attempting to protect by restrictive 

* For example, in Austria-Hungary. But a contrary view is expressed by Seton- 
Watson (Scotus Viator), who maintains, in his "Future of Austria-Hungary" (1907), 
that the predicted break-up is not only improbable but impossible, and he advances 
a number of reasons in support of his proposition. 



PRINCIPLE OF NATIONALITY 53 

legislation its population against the deleterious effects 
of an undesirable foreign immigration. Some writers go 
to the length of holding that the wishes of the local inhabit- 
ants are entitled to no respect whatever when considera- 
tions of national unity require their annexation to another 
country. Thus the German argument for the annexation 
of Alsace was based, not on the theory that the Alsatian 
population desired annexation to Germany, for as a matter 
of fact they preferred union with France, but on the ground 
that they were German in origin and spoke the German 
language. The French, on the contrary, have defended 
their designs on the Rhine on the ground that the Rhine 
is the natural geographical frontier of France, and that the 
annexation of the territory in question would mean a 
rounding out and a completion of her national unity. 
Similarly Italian writers have demanded the annexation or 
absorption of the Italian-speaking communities in Austria 
and Switzerland because they are Italian in race and 
language.^ 

What has been said above in regard to the right of the Respect 
state within reasonable limits to take extreme measures to R^ghJof 
preserve itself against the dangers of ethnic heterogeneity Nation- 

fllitics 

in its population must not be understood as an argument 
in favor of the reckless disregard of the rights of national- 
ities.^ Considerations both of humanity and of public 
policy require that their peculiar customs and institutions 
should within the limits of national security be respected. 
Except in extraordinary circumstances, they should be al- 
lowed to retain their own language, their local law, and such 
of their institutions as are peculiar to them and suited to 
their local conditions. But it is no injustice to small nation- 
alities within the state not to be allowed the use of their 
language in the national parliament, or in the army, though 

* Compare Lecky, "Democracy and Liberty," vol. I, p. 394. 

* On the rights of nationalities see Bluntschli, "Allgemeine Staatslehre," bk. 
II, ch. 3. 



54 



THE NATURE OF THE STATE 



Consoli- 
dation of 
States in 
the Inter- 
est of 
Nation- 
ality 



considerations of convenience, regardless of any question of 
moral right, usually make it advisable to permit to each na- 
tionality the use of its own language in the local governments. 
On the other hand, the principle of nationality in its 
strictest form, in cases where several states are organized 
within the limits of a single nation, especially if it consti- 
tutes at the same time a geographic unity, would require the 
union of the several states under a common sovereignty, 
either through voluntary federation or through the absorp- 
tion of the smaller states by the larger. It was through 
the latter process that the German Empire and the king- 
dom of Italy were welded into national states. In each case 
the more powerful and progressive state within the nation 
took the initiative and gathered about it such of its neigh- 
bors as voluntarily consented to become members of the 
union, and by compulsion forced the rest to merge their 
existences into the larger organization ; and thus the po- 
litical boundaries of the new states were brought into 
approximate harmony with their geographic and ethnic 
lines. There is no difference of opinion now that the wel- 
fare of the peoples directly concerned, the peace of Europe, 
and the civilization of the world were promoted by the 
organization of these great national states in the place of 
the petty commonwealths which formerly existed ; and none 
but the political doctrinaire troubles himself to-day about 
the means by which this great work was accomplished. 
Professor Burgess, speaking on this subject, well says: 
"And who does not see that the further rounding out of 
the European states to accord still more nearly with the 
boundaries which nature has indicated would be in the 
interest of the advancement of Europe's political civiliza- 
tion and of the preservation of the general peace? It 
would expel the Turk from Europe; it would put an end to 
the Russian intrigue in the valley of the Danube; it would 
give Greece the vigor and power to become a real state; 
and it would bring the petty states of Switzerland, Denmark, 



PRINCIPLE OF NATIONALITY 55 

Holland, Luxembourg, Belgium, and Portugal to contrib- 
ute, in far greater degree, to the political civilization of the 
world, and receive, in far greater degree, the benefits of 
that civilization, than their present conditions permit. 
Even then there would be weak places enough in the boun- 
daries of each national state, but their number would be 
greatly decreased, and the temptation to invasion which 
they offer greatly lessened." ^ 

The political history of Europe during the past century Tendency 
goes far toward justifying the conclusion that the states Jhrorgan- 
of the future are to be national states, not necessarily states ization of 
whose political, geographical, and ethnic boundaries are national 
identical, but those in which there is a fair approximation ^***®^ 
to this ideal. Some writers, notably Dahlmann and Von 
Mohl in Germany, Mancini, Maniani, and Pierantoni in 
Italy, and Burgess in America, come pretty near to the 
point of contending for the principle that the boundaries 
of states and nations should coincide; that is, that there 
should be a state for every nation and a nation for every 
state. A strong criticism of this position has been made 
by Gumplowicz, who asserts that there is no historical or 
sociological justification for the view that "mono-national" 
states possess elements of advantage over those composed 
of a number of nationalities. He asserts, on the contrary, 
that there is more popular freedom in "poly-national" 
states than in those whose populations are ethnically 
homogeneous, and he cites Switzerland, "the freest state in 
Europe," as an example.^ Even Bluntschli, who is an ex- 
treme advocate of the principle of nationality in the organ- 
ization of states, admits that ethnic heterogeneity is not an 
unmixed evil, since the presence of foreign elements in the 

' "Political Science and Constitutional Law," vol. I, p. 41. 

^"Allgemeine Staatsrecht," p. 115 S. For a good review of the doctrines of 
the Italian school of writers on the question of nationality, see an article by Franz 
Holtzendorff in the " Revue de Droit international, " vol. II, pp. 92-106. See also 
Lecky, "Democracy and Liberty," vol. I, pp. 391-396. 



56 



THE NAtURE OF THE STATE 



Alleged 
Advan- 
tages of 
Ethnic 
Hetero- 
geneity 



State may be a means of "keeping open connection with 
the civiHzation of other states" and may "serve as an 
alloy to give strength and currency to the nobler metal." * 
De Parieu quotes the Emperor Francis II of Austria as 
once saying to the French ambassador: "My people are 
strangers to one another and yet it is for the better. They 
never have the same ills at the same time. In France, 
when there is an epidemic of fever, you all have it the 
same day. I have Hungarians in Italy and Italians in 
Hungary. Each suspects his neighbor; they never under- 
stand one another and in fact detest one another. Their 
antipathies, however, conduce to order and their mutual 
hate to the general peace." ^ 



rheories 
concern- 
ing the 
Nature of 
Society 



III. THE ORGANIC THEORY OF THE STATE 

One of the qualities usually attributed to the state is that 
of organic unity. A mere mass of human beings uncon- 
nected by some sort of unifying bond does not constitute 
a state or even a society.^ Concerning the nature and 
degree of this unifying element a number of theories have 
been advanced by sociological and political writers. One 
of these is the so-called monistic theory, which conceives 
organized society to be an association in which the individ- 
uals composing it have no really independent existence of 
their own but are swallowed up, as it were, like atoms in 
the whole mass, owing all that they are and all that they 
have to the society of which they are a part. Then there 
is what has been called the monadnistic theory, which goes 
to the other extreme and considers society as a mere aggre- 
gation of individuals or groups, in which there is no real 
unity, each individual being largely independent of the rest, 
owing nothing to society, and, except for a sort of accidental 
juxtaposition, standing in isolation from his neighbors. In 

^ "Allgemeine Staatslehre," bk. II, ch. 4. 

- "Principes de la Science politique," p. 304. 

^ Compare Worms, "Organisme et Societe," p. 7. 



THE ORGANIC THEORY OF THE STATE 57 

the third place, there is the diialistic conception, which repre- 
sents a compromise view. It considers the relation of the 
individual to society to be one of partial dependence only. 
His existence is neither merged in that of the whole as 
though he existed solely for society, nor is he entirely iso- 
lated from, and independent of, his social surroundings.* 
Finally, there is the organic view, which considers society 
as analogous in structure to a biological organism, the rela- 
tion of the individual to the whole mass being similar to 
that which exists between the cell and the organism of a 
living being. 

The organic theory, says Jellinek, is one of the oldest and The 
most popular theories concerning the nature of the state.' Thiory! 
Plato compared the republic to a great man and insisted that 
the best-ordered commonwealth was one whose structural 
organization resembled most nearly in principle that of the 
individual.^ As the whole body feels the pain and sym- 
pathizes with an injured member, so, he declared, the whole 
society is affected by injury to each individual of which it 
is composed.* Cicero likewise drew an analogy between the 
state and the individual, likening the head of the state to 
the spirit which rules the human body. The state was 
personified by medieval writers like John of Salisbury and 
Marsiglio of Padua; Althusius was fascinated with the bio- 
logical analogy ; and many of the writers of the eighteenth 
century attached an importance to it out of all proportion 
to its value. The French Revolution, with its accom- 
panying doctrine that the state was merely an artificial 

' For the above distinctions see Mackenzie, "Introduction to Social Philosophy," 
first ed., pp. 131-133; see also Montague, "Limits of Individual Liberty," chs. 3 
and 4. 

' "System der subjektiven offentlichen Rechte," p. 35. 

'"De Republica," p. 462. 

* Ibid., Ill, 25. Cf. also Aristotle, "Politics," Jowett's ed., p. 113. The com- 
parison of the state with the human organism has been a favorite subject of poets 
and prose writers. See Shakespeare, "Julius Caesar," II, i; St. Paul, Romans 
xxii, 51; also i Cor. xii, 12. 



58 THE NATURE OF THE STATE 

creation, tended to check the spread of the organic theory ; 
but toward the middle of the nineteenth century a reaction 
against the French philosophy set in, and the conception 
of the state as an organism came to have numerous advo- 
cates/ Indeed, the fascination for the organic theory, 
with its analogies and paralleHsms, became so widespread 
that political science seemed in danger of being appro- 
priated by natural science.^ One of the most extreme advo- 
cates of the organic theory was the noted German scholar 
Bluntschli, in his "Theory of the State" ("AUgemeine 
Staatslehre") and in his "Psychological Studies con- 
cerning State and Church" (" Psychologische Studien iiber 
Staat und Kirche," 1884). The state, he declares, is the very 
"image of the human organism." ^ Each has its member 
parts, its organs, its functions, its life processes, and be- 
tween those of the state and human organisms there exists 
a deep and striking resemblance. He pushes the bio- 
logical analogy so far indeed as to impute sexual qualities 
to the state, it being personified as masculine in character 
as contradistinguished from the church, to which he 
attributes the attribute of femininity.^ His comparison 
of the structure and life processes of the state to those of 
the human body is at times almost amusing.^ The state, 
to him, is "no mere artificial lifeless machine," but a 

* Compare on this point Merriam, "Theory of Sovereignty since Rousseau," 
p. 87 et seq. See also Jellinek, op. cit., p. 142 et seq. 

^ See Franz, "Vorschule der Physiologie des Staates"; Leo, "Studien zu einer 
Naturlehre des Staates " ; Krieken, "Uber die sogenannte organische Staatstheorie " 
(1873) ; Bruno Schmidt, " Der Staat als Organismus " in his " Der Staat," sec. 2 ; 
and Richard Schmidt, "AUgemeine Staatslehre," vol. I, sec. 18. The word 
"organism," says Schulze, first appeared in the German literature of political 
science in Gerber's "Offentliche Rechte," published in 1852, in a criticism of the 
theory which had formerly been advocated under other names. For a review of the 
development of the organic theory in Germany, see Schulze, " Deutsches Staatsrecht," 
vol. I, pp. 20-23. 

* "Psychologische Studien iiber Staat und Kirche," p. 22. 

* Ibid., p. 39; see also his "AUgemeine Staatslehre," bk. I, ch. i. 

* Compare the preface to the English translation of his "AUgemeine Staatslehre," 
p. V. 



THE ORGANIC THEORY OF THE STATE 59 

"living spiritual organic being." As an oil painting, he 
says, is something more than a mere aggregation of drops 
of oil, as a statue is something more than a combination of 
marble particles, as a man is something more than a mere 
quantity of cells and blood corpuscles, so the nation is 
something more than a mere aggregation of citizens and the 
state something more than a mere collection of external 
regulations/ 

As the animal organism is made up of living members or The Bio- 
germ cells, interdependent one upon the other and, upon Analogy, 
the whole, each performing its peculiar functions in the life 
-economy of the organism, so the state organism is composed 
of individuals, not isolated and disconnected like the atoms 
of an inorganic body, but closely related and dependent upon 
one another and upon the whole society, somewhat as a limb 
of the human body or the branch of a tree is dependent upon 
the main trunk. In origin, structure, and function, say the 
advocates of the organic theory, there is a striking resem- 
blance between the social body and the animal organism. 
Each comes into existence through natural rather than arti- 
ficial processes, each possesses organs whose functions are sim- 
ilar in many respects, and each changes and grows according 
to laws instead of by mere chance.^ Rousseau, who saw a 
close resemblance between the body politic and the human 
body, compared the sovereign power of the state to the 
head of an individual ; the laws and customs to the brain ; 
the judges and the magistrates to the organs of will and 
sense; commerce, agriculture, and industry generally to 
the mouth and stomach which prepare and digest the food ; 
and the public finances to the blood, which a wise economy, 
through the medium of the heart, distributes throughout 
the entire organism.^ 

^ "Allgemeine Staatslehre," p. 192. 

' For a good statement of the analogy by a French writer, see Collier, "La 
Souverainete nationale," p. 21. 

' Quoted by Leroy-Beaulieu, "L'Etat moderne et ses Fonctions," p. 96. I am 
unable to find the analogy in this form in Rousseau's "LeContrat social," although 



6o THE NATURE OF THE STATE 

Spencer's Herbert spencer, in his "Principles of Sociology," worked 
Compari-* ^^^ ^ most elaborate analogy between organized society and 
son the biological organism. Both the animal and social bodies, 

he affirms, begin as germs, undergo a process of continuous 
growth, the parts, as they develop, becoming more and more 
unlike, and exhibiting greater complexity of structure. As 
the lowest type of animal is all stomach, respiratory sur- 
face, or limb, so primitive society is all warrior, all hunter, 
all hut builder, or all tool maker. ^ As society grows in 
complexity, division of labor follows, i.e. new organs with 
different functions appear, corresponding to the differen- 
tiation of functions in the animal, in which "fundamental 
trait" they become "entirely alike." In each case there is 
a mutual dependence of parts, the full performance of the 
functions of each member being essential to the health and 
preservation of the rest. If the iron worker in the social 
organism stops work, or the miner, or the food producer, 
or the distributor fails to discharge his natural functions 
in the economy of society, the whole suffers injury just as 
the animal organism suffers from the failure of its members 
to perform their functions. Thus the "parallelism between 
social and animal life" is maintained. The slow but con- 
stant replacement of cell tissue and blood corpuscle in the 
animal organism, by which it is destroyed and reproduced 
again, we are told, is paralleled by the processes in society, 
by which it is permanently maintained, notwithstanding the 
deaths of the component members." Spencer attributes to 
both the animal organism and the social body a "sustaining 
system" consisting of alimentation in the former, and 
production in the latter; a "distributing system" consist- 
ing of the circulatory apparatus in the human body, and 
the transportation system in society; and a "regulatory 
system," the nervous system in the animal, governments 

in bk. Ill, ch. ii, he compares the legislative power to the heart and the executive to 
the brain, "which gives motion to all the parts." 

' Vol. I, pt. II, sec. 217. * Ibid., sec. 217, also chs. 3 and 4. 



THE ORGANIC THEORY OF THE STATE 6i 

and armies in the state. ^ In spite of all these elements of 
resemblance Spencer admits, however, that there is one 
"extreme unlikeness" in the structure of the body politic 
and the animal organism. The latter, he says, is concrete 
in structure, that is, its units are bound together in close 
contact; while the social body is discrete, its units being 
free and "more or less widely dispersed." ^ He readily ad- 
mits that the difference is "fundamental," though, he says, 
"upon close examination it will not put comparison out of 
the question," for it can be shown that "the social aggre- 
gate, though discrete, is still a living whole." ^ There is 
still another difference between the two organism.s, he says, 
which "greatly affects our notion of the ends to be achieved 
by social organization," namely, the lack of a "nerve 
sensorium" in the social body. In the animal, conscious- 
ness is concentrated in a small part of the aggregate; in the 
social organism, it is diffused throughout the aggregate. 
The conclusion of practical politics which Spencer draws 
from the failure of the analogy at this point is that the 
welfare of the aggregate in society, considered apart from 
that of the units, is not an end to be sought; that, in short, 
society exists for the benefit of its members, not its members 
for the benefit of society.^ Upon the dissimilarity which he 
finds between society and the biological organism, or rather 
upon the discrete nature of the social organism, he builds 
up his individualistic political philosophy, which has 
seemed to some to be wholly inconsistent with his organic 
theory of the state. ^ 

^ Ibid., chs. 7, 8, and g. In the "Westminster Review," in i860, Spencer 
published an essay in which he drew a parallel between the up-and-down lines of a 
railway, which furnishes the circulation of commodities in the social organism, 
and the arteries and veins of an animal, money being the blood corpuscles and the 
telegraph wires the nerves. I am unable to find any allusion to this parallel in his 
collected works, from which it seems to have been wisely omitted. 

^ Ibid., sec. 220. ' Ibid., sec. 221. * Ibid., sec. 222. 

* Compare Ritchie, "Principles of State Interference," p. 17. Spencer's denial 
of the existence of a "nerve sensorium " in society was probably the result of his indi- 
vidualistic thinking. After his long argument in support of the organic theory of 



62 



THE NATURE OF THE STATE 



Other 
Advocates 
of the 
Organic 
Theory 



The Austrian publicist Albert Schaffle is another writer 
who has greatly overworked the biological analogy. In 
lOur large volumes entitled "The Structure and Life of 
the Social Body" ("Bau und Leben des socialen Korpers") 
ne examines at great length the anatomical, physiological, 
biological, and psychological resemblances between society 
and the animal body and asserts that society is an organism 
whose protoplasm or unit is man, the state or government in 
the one corresponding to the brain in the other. His work 
as a whole exhibits evidence of enormous learning and wide 
research, and the theory of the organic nature of society is 
supported with ability and ingenuity.^ Of a similar 
character and magnitude is the work of Paul Lilienfeld, a 
Russian sociologist, whose "Thoughts concerning the 
Social Science of the Future" ("Gedanken liber die Social- 
wissenschaft der Zukunft"), published in five volumes be- 
tween 1873 and 1 88 1, constitutes an elaborate exposition of 
the organic theory, including the laws of social psychology 
and social physiology. He goes even beyond Spencer and 
Schaffle in the emphasis which he places on the organic 
character of society, and in his advocacy of the biological 
analogy.^ Among others who have explained and de- 
fended the organic theory may be mentioned the French 
writers: Auguste Comte,^ Tarde,* Letourneau,^ De Greef,® 
Fouillee,^ and Rene Worms;* the Polish writerGumplowicz;' 

society, it seemed necessary to reconcile his biological theory with his doctrine of 
Individualism by showing that after all there is a difference and that the parts are 
not dependent on the whole, as they are in the case of the animal organism. 

^ Compare Leroy-Beaulieu, "L'Etat moderne et ses Limites," ch. 4. 

' For a statement of the difference between their conceptions see the preface of 
Rene Worms to Lilienfeld's "La Pathologie social," p. vii. In the latter work 
Lilienfeld continues his study of the organic nature of society, considering in particu- 
lar such topics as the "maladies of the social organism," its "nervous system," the 
pathology of society, " social therapeutics," etc. 

' "Positive Philosophy," vol. II, ch. 3. 

* "Lois de I'lmitation," also his "Division du Travail." 

*"La Sociologie." '"Introduction a la Sociologie." 

^ "La Science sociale contemporaine." ^ "Organisme et Societe." 

• " Sociologische Staatsidee, " also his "Sociologie und Politik." 



THE ORGANIC THEORY OF THE STATE 63 

and the Germans Ahrens ^ and Waitz." Of these the 
French sociologist Worms is to-day probably the most 
eminent advocate of the organic theory. In his "Organ- 
ism and Society" he expounds and defends the biological 
analogy, maintaining that the anatomy, physiology, and 
patholog}^ of society possess striking similarities to the 
structure, function, and pathology of living beings.^ 

If the organic theory meant simply that the state is Criticism 
something more than an aggregation of individuals crowded organic 
or massed together without any unifying bond, in other Theory 
words, that it is a society in which the members individually 
are in a peculiar sense dependent upon the w^hole and the 
whole in turn is conditioned upon the parts, no well- 
grounded objection to it could be sustained. Even the 
biological analogy up to a certain point, though subserving 
little or no practical purpose, is harmless and scientifically 
unobjectionable, for manifestly there are certain elements 
of resemblance between the structure and functions of the 
state on the one hand and those of living beings on the other. 
But at many points the comparison utterly fails and the 
resemblance becomes pure fancy. Thus the resemblance 
between the cells of a biological organism and the human 
beings who constitute the body politic will be seen upon 
dose examination to be exceedingly superficial. The 
former are mechanical pieces of matter, with no independ- 
ent life of their own, each being fixed in its place, having 
no power of thought or will, and existing solely to support 
and perpetuate the life of the whole; the latter are intel- 
lectual and moral beings, each having a will of its own, 
possessing the power of foresight, movement, and self- 
control, and a physical life independent of the whole of 
which they are a part. Each individual has to a large 
extent the shaping of his own life; and his place in the 
organism is not determined for him nor are his activities 
regulated by central organs. This lack of consciousness and 

* "Die organische Staatslehre." * "Politik," vol. I. ^ See especially ch. 1. 



64 



THE NATURE OF TFIE STATE 



will on the part of the cells of the animal organism and Its 
presence in the state organism is one of the instances where 
the analogy fails. With the animal organism the depend- 
ence of the parts on the whole is essential, and the relation 
intrinsic; if they are severed from their connection, as a 
branch from a tree or a liml) from an animal, they perish 
and cease to be living matter. With the state, on the con- 
trary, the separation of a member docs not result in de- 
struction, physically speaking; the individual separated 
from the whole is still an individual.* Moreover, the laws 
of growth, development, decay, and death which govern 
the life of the human organism are scarcely analogous in 
any sense to those which reign in the world of politics. An 
organism grows and develops from within by internal adap- 
tation, not by the addition from without of new parts; 
while the state changes rather than grows, and does this, 
for the most part, by the process of formal alteration as a 
result of volitional power and conscious effort of the 
members. Its growth, if such it may be called, is largely 
the result of the conscious action of its individual members 
and is to a great extent self-directed. The elements of voli- 
tion and of conscious effort do not enter into the growth 
of an organism; it changes in obedience to the operation 
of blind mechanical forces of nature, the parts having no 
power to alter the direction of its growth or to add to 
its stature.^ Indeed, as Jellinek remarks, growth, decline, 
and death are not necessary processes of state life though 
they are inseparable from the life of the organism.' The 
state does not originate or renew itself as a plant or an 
animal does. In fact, to quote Jellinek again, many 
modern states like the German Empire, Italy, and some 
of the Balkan commonwealths owe their existences to 



* Compare Mackenzie, "Introduction to Social Philosophy," p. 138. 

* Compare Willoughby, "Nature of the State," p. 37, and Ward, "Psychic Fac- 
tors of Civilization," p. 299. 

' "System der subjektiven offentlichen Rechte," p. 40. 



THE ORGANIC THEORY OF THE STATE 65 

the sword rather than to any cause that may be compared 
to the procreative or generative processes through which 
plants and animals come into existence.' 

Our conckision must be that the biological analogy, in conciu- 
the form in which it is usually stated, is not only fanciful ^'°°^ 
and absurd, but even mischievous, and would not merit 
notice were it not relied upon by some respectable writers 
as the justification of an important theory concerning the 
relation of the state to the individual members composing 
it — a subject which will be discussed in a later chapter 
of this book. Some of these biological comparisons are 
ingenious and well stated ; to many writers they have proved 
fascinating and seductive; to others they have constituted 
the basis of an argument for a theory of the state which 
would sacrifice the individual to society. The organic 
theory, in the sense in which it is understood by many 
writers, rests on mere analogy, and we would do well to 
heed Lord Acton's warning about analogies and parallel- 
isms lest we come to grief. For this reason Jellinek sug- 
gests that we had better reject the theory in toto lest the 
danger from the large amount of falsity in the analogy 
should outweigh the good in the little truth which it con- 
tains.^ It is difficult to see what is to be gained by the 
attempt to identify or compare the state with an organism. 
At this stage of the world's political development neither 
the identification nor the resemblance is necessary to estab- 
lish the supremacy of the state over the individuals who 
compose it.^ 

* "Recht des mod. Staates," p. 149. ^ Ibid., p. 151. 

^ For criticism of the organic theory see Jellinek, "Recht des mod. Staates," 
p. 142 ff. ; Leroy-Beauiieu, op. cit., ch. 4; Mackenzie, "Introduction to Social 
Philosophy," ch. 3 ; Schulze, " Deutschcs Staatsrecht," I, 22-23 ; Leacock, " Elements 
of Political Science," pp. 80-82; Willoughby, "Nature of the State," ch. 3. Worms, 
in his "Organisme et Soci^t^, " ch. 2, examines and answers the various objections 
to the organic theory. 



POL. SCI. — 5 



CHAPTER III 



ESSENTIAL ELEMENTS OF THE STATE 



Citizens 

and 

Subjects 



Suggested Readings: Bluntschli, ' Ailgemeine Staatslehre," bk. I, 
ch. i; bk. Ill, chs. 1-3; Bornhak, "Ailgemeine Staatslehre," pp. 69- 
81; Carnazza-Amari, " Traite de Dn it international public," vol. I, 
p. 193 ff. ; Despagnet, "Cours de Droit international public," 
pp. 81-84; DuGUiT, "Droit constitulionnel," sees. 24-26; FuNCK- 
Brentano, "La Politique," ch. 2; Hall, "International Law," chs. i 
and 2; Held, "System des \ erfassungsrechts," chs. 4, 5, 12; Huhn, 
"Politik," ch. 2; Jellixek, "Recht des modernen Staates," bk. Ill, 
ch. 13; Von Moiil, " Encyklop idle der Staatswissenschaften," sees. 
18 and 19; Moore, "Digest of Iitcrnational Law," vol. I, sec. 128; 
Oppenheim, "International Law," vol. I, pt. II, ch. i; Pradier- 
FoDERE, "Traite de Droit international public," vol. I, ch. 2; Rimer, 
"Principes du Droit des Gens," vol. I, bk. Ill, ch. i; Schmidt, 
"Grundziige der praktischen Politik," sees. 9 and 10; Schulze, 
"Deutsches Staatsrecht," vol. I, sees. 8-12; Treitschke, "Politik," 
vol. I, sec. 6; Waitz, " Grundziige der Politik," pp. 1-9; Wheaton, 
"Elements of International Law," ch. 2, sec. 2; Woolsey, "Political 
Science," vol. I, pt. II, ch. 3. 

I. PEOPLE 

The first element which enters into the physical make-up 
of the state is the population v^hich constitutes its member- 
ship. To each inhabitant may be attributed the quality 
of citizen when he is viewed as an active participator in the 
common will, and of subject when he is thought of as a 
passive member with no share in the public power. ^ Le- 
gally all persons within the jurisdiction of the state are, of 
course, subjects of the state, and in most monarchical 
countries the term "subject" is commonly employed to 
designate all who owe obedience, regardless of whether they 
enjoy full civil and political rights or not. Citizenship is 

^ Cf. on this point Rousseau, " Le Contiat social," bk. I, ch. 6, and Waitz^ 
" Grundziige der Politik," pp. 21-24. 

66 



PEOPLE 67 

not necessary to membership in the state for certain pur- 
poses, and as a matter of fact there is a more or less numer- 
ous body of aUens in every state, who are at the same time 
members, so far as the right of protection and the duty of 
obedience are concerned. Citizenship, however, is the 
normal relation, and the state may insist upon it as a condi- 
tion to the enjoyment of civil rights as well as political 
privileges.^ 

There is no rule or political practice governing the num- Amount 
ber of persons necessary to entitle a community to recogni- ^q^ ne"esl 
tion as a state; as a matter of fact the populations of the sary to 
existing states of the world vary quite as widely as the areas a state 
of their territories. Some writers in the past have, how- 
ever, undertaken to lay down within broad lines certain 
principles which should determine the amount of popula- 
tion necessary to the existence of a state, and some have 
even assumed to fix exactly the minimum and maximum 
number of inhabitants; but manifestly any such rules must 
be arbitrary and worthless. Aristotle was certain that 
there ought to be a limit. The number, he said, should 
neither be too small nor too large, but large enough to 
be self-sufficing and small enough to be well governed.^ 
Rousseau, without attempting to fix upon any particular 
number, laid down the rule that there should be a certain 
proportion between, the population of the state and the 
extent of its territory. A political body, he declared, may 

^ Compare Bornhak, "Allgemeine Staatslehrc," p. 11. 

* "Politics," VII, 4, Jowett's edition, pp. 214-215 ; also "Nichomachean Ethics," 
IX, 10, p. 3. The German writer Schulze in considering this subject asserts very 
properly that no definite minimum can be fixed except that the population must 
exceed the number embraced within a single family, that is, it must comprise a 
"circle" of families. "Deutsches Staatsrecht, " vol. I, p. 16. See also Bornhak 
{op. cit., p. 16), who remarks that a family or a clan may become the nucleus of 
a state, but until the family has broken up and expanded into a race there can be 
no state. Hauriou ("Droit administratif," p. 7) lays down the rule that the popu- 
lation must be sufficient to make possible a distinction between public and private 
affairs. For a full discussion of the subject see Held, " System des Verfassungs- 
rechts," ch. 4. 



68 ESSENTIAL ELEMENTS OF THE STATE 

be measured in two ways, viz. by the extent of its territory 
and by the number of its people, and there is between these 
measurements a relation which should give to the state its 
true dimensions. The extent of land should be sufficient 
to nourish the inhabitants, and there should be as many 
inhabitants as the land can sustain.' In another place he 
argued that the larger the population of the state, the less 
the liberty of the individual, because his share in determin- 
ing the sovereign will must be correspondingly less.' About 
the nearest approach to a safe rule is to say that the popu- 
lation must be sufficient to provide both a governing body 
and a number of persons to be governed, and of course 
sufficient to support a state organization. If the other 
elements are fully present, this number need not be con- 
siderable. Changes in the population of the state, of course, 
have no more effect upon its corporate existence than do 
changes in the territorial area. Populations are con- 
tinually augmented by natural increase and by immigra- 
tion and decreased by emigration and other causes, but 
unless the loss is so great as to render the maintenance of a 
state organization impossible the existence of the state 
remains unaffected. 

II. TERRITORY 

Another physical constituent in the make-up of the state 
is the land or territory which serves as the abiding place of 
those who constitute its membership. In a peculiar sense 
territory is the physical basis of the state. '' "As the state 

^ "Le Contrat sociil," bk. II, ch. lo. 

^ Ibid., bk. Ill, ch. i. Thus, he reasoned, if the population of the state is ten 
thousand citizens, each citizen's share in determining the sovereign will is one ten- 
thousandth; whereas if the population is one hundred thousand, his share is only 
one hundred-thousandth, or one tenth as great. 

^ Cf. Jellinek, "Recht des mod. Staates," p. 73. "Die N otwendigkeit des Bodens 
fiir den Staat ist ilher alien Zweifel erhoben," observes Ratzel in his "AnthropKJgeo- 
graphie" (pt. I, p. 66). "Weil der Stait ohne Boden und Grenzen nicht zu denken 
ist, hat sich schon friih eine politische Ceographie eultvickelt, und wenn auch die 
Staats-wissenschaft die Raum- und Lagebedingungen der Staaten oft ubersah, so ist 



TERRITORY 69 

has Its personal basis in the people," says Bluntschli, "it 
has its natural basis in the land ; a people does not become 
a permanent state till it has acquired a territory." ^ A 
population unattached to a definite portion of the earth's 
surface is nothing more than a wandering horde or migra- 
tory band. History abounds in examples of nomadic 
peoples like the Jews after their dispersion and before their 
settlement in Palestine, the German tribes during their 
wanderings after the break-up of the Roman Empire, the 
"trekking" Boers of South Africa after the abandonment 
of their original lands for a new home to the north, but 
until they ceased wandering and settled themselves upon 
a definite portion of territory they never became states, 
though they may have been states in the making. There 
can be no such thing as a migratory state. The state, as 
its etymological meaning suggests, is associated with a 
fixed abode. ^ Sovereignty is no longer considered personal 
but territorial. 

dock eine den Boden vernachldssigende Staatslehre immer eine voriibergehende 
Tauschiing geivesen." 

' " Allgemeine Staatslehre," bk. Ill, ch. 4. 

^ This is the opinion of Jellinek, op. cit., pp. 72-74; Von Mohl, "Encyklopadie," 
sec. 19; Rivier, "Principes," etc., vol. I, pp. 135-136; Duguit, "Droit constitution- 
nel," sees. 24-26; Schmidt, " Grundzuge der praktischen Politik," sec. 9; Wheaton, 
"Elements," ch. 2, sec. 2; Oppenheim, "International Law," vol. I, pt. II, ch. i; 
Ptadier-Fodere, "Traite," vol. I, p. 152; Phillimore, "International Law," vol. I, 
ch. i; Hauriou, "Droit administratif," p. 7; Bluntschli, "Allgemeine Staatslehre," 
bk. Ill, ch. 4 ; Carnazza-Amari, " Droit int. pub.," vol. I, p. 196; and Held, "Sys- 
tem des Verfassungsrechts," ch. 5. The latter writer discusses fully the legal and 
physical aspects of territory as a constituent element of the state. There are a few 
writers, however, who do not seem to consider territory as an indispensable element 
in the constitution of the state. So high an authority as Holland in the definition of 
the state quoted in the preceding chapter says a state is a numerous assemblage of 
persons generally occupying a certain territory, etc., thus implying the possibility of 
a non-territorial state. Hall takes the same view. "Abstractedly," he says, "there 
is no reason why even a wandering tribe or society should not feel itself bound as 
stringently as a settled community by definite rules of conduct toward other com- 
munities," though he confesses that the "circumstances of modern civilization which 
associate land with sovereignty make the possession of a fixed territory a practical 
necessity." "International Law," p. 20. 



70 



ESSENTIAL ELEMENTS OF THE STATE 



What is 
included 
within a 
State's 
Territory 



Ownership 
of the 
Land is 
Private, 
not Public 



The territory of the state consists not only of a definite 
portion of land, but also of the rivers, lakes, and canals 
within its limits, and if the state touches upon an open sea it 
includes in addition a maritime belt generally recognized to 
be three miles in width measured from low-water mark. ^ 
Whether this maritime belt is to be considered actually as 
part of the territorial domain of the state or merely a part 
of the open sea over which the state is permitted by the law 
of nations to exercise jurisdiction for certain purposes, there 
is a difference of opinion among publicists.^ The territorial 
domain of the state is not the property of the state or of 
any ruler; the patrimonial state, in which the monarch was 
considered the ultimate owner of the land, is a thing of the 
past. Rulers can no longer, as they often did in medieval 
times, sell, pawn, give away, or partition their domains as 
though they were private property.^ The modern state 
exercises imperium, not dominium, over the land embraced 
within its limits; that is, the ownership of the land belongs 
to private individuals, subject always, of course, to the right 
of expropriation by the state for public purposes.* The 
right of private ownership has become so completely dis- 
sociated from the old patrimonial idea that cessions of 
territory to foreign states, according to the public law of 
the civilized world, are no longer considered as affecting 
in the least the private ownership of the lands so alienated. 

^ Hall, "International Law," sec. 30. The Institute of International Law has 
voted in favor of fixing the maritime belt at six miles instead of three. " Annuaire," 
vol. XIII, p. 328. For the enforcement of its revenue and sanitary laws the juris- 
diction of the state over a wider zone is often asserted and properly conceded. 

^ See Oppenheim, "International Law," vol. I, p. 240, for a discussion of the two 
views. The increasing importance of the atmosphere for purposes of telegraphic 
communication and aeronautic transportation is likely in time to raise important 
questions concerning the extent of the state's control over the atmosphere above its 
territory. See vol. XIX of the "Annuaire" of the Institute of International Law, 
on this subject. 

^ On this point see Bluntschli, " Allgemeine Staatslehre," bk. Ill, ch. 5. 

* A state may, of course, own large areas of land (this is true, for example, of the 
United States, Canada, and Australia) in which case it is a proprietor as well as a 
sovereign and exercises over such lands dominium as well as imperium. 



TERRITORY 71 

The territory of the state may be "integrate" and contigu- 
ous, Hke that of Switzerland; or it may be dismembered 
and a part of it non-contiguous, Hke that of Great Britain; 
or it may be an enclave, that is, entirely inclosed within 
the territory of another state, like the Republic of San 
Marino, for example, which is an inclosure of Italy/ 

State boundaries may be natural or artificial, that is, state 
they may be bodies of water, mountain ranges, deserts, ^.^1^°' *' 
forests, and the like, or mere surveyors' lines marked by 
posts, monuments, stones, trenches, walls, etc. If the boun- 
dary is a navigable stream, the line ordinarily runs through 
the middle of the most navigable channel, the filum aqiicB 
or Thalweg; if non-navigable, it follows an imaginary line 
midway between the two banks. Where mountain ranges 
constitute the boundary, the dividing line, in the absence 
of special treaty stipulations, follows the crest of the water- 
shed. Disputes concerning boundaries between states 
have been common in the past and are not infrequent even 
to-day among the newer states of the world. During the 
nineteenth century the boundaries of various European 
states, notably those of Turkey, Bulgaria, Servia, Monte- 
negro, and Roumania, were adjusted by international com- 
missions created by general treaty arrangements.^ 

The extent of a state's territory has an important bear- Area as a 
ing not only on the question of its capacity for self-defense, strength 
its power and influence in the family of nations, but to some or Weak- 
extent upon the form of its governmental organization and 
its activities. There is some difl"erence of opinion among 
practical statesmen as well as political theorists as to 
whether vastness of territorial domain is a source of strength 

^ Formerly there were numerous examples of enclaves in Germany. Birkenfeld, 
a part of the Grand Duchy of Oldenburg, is to-day entirely surrounded by Prussian 
territory. 

^ For a discussion of the subject of boundaries see Oppenheim, "International 
Law," vol. I, pp. 253-263; Moore, ''Digest of International Law," sec. 128; Hall, 
"International Law," pp. 128-129; Iowa v. Illinois, 127 U. S. i; Keokuk and 
Hamilton Bridge Co. v. Illinois, 175 U. S. 626. 



72 



ESSENTIAL ELEMENTS OF THE STATE 



No Rule 

as to the 
Extent of 
Territory 
for a 
State 



or weakness, especially when part of the territory is non- 
contiguous, remotely situated, and inhabited by alien races. 
On the whole, however, the advantage seems to be on the 
side of empire, and it is the ambition of most modern states 
to increase the extent of their territories. In recent years 
we have seen something of a scramble among European 
states for additional land in Africa, and even the United 
States, which until lately was satisfied to pursue its destiny 
on the continent of North America, has acquired extensive 
dominions beyond the seas. 

There is no rule or practice concerning the extent of 
territory necessary to constitute the home of a state, any 
more than there is regarding the amountof population. As 
a matter of fact, states have varied in size all the way from 
the city states of antiquity to the vast empires of to-day. 
At the present time they vary from the petty republics of 
Monaco and San Marino, embracing only a few hundred 
square miles of territory, to the British and Russian empires 
and the United States, containing millions of square miles. 
There have always been small states, both monarchies and 
republics, and they have maintained themselves by the side 
of their more powerful neighbors until this day. It is, 
therefore, absurd, as Bluntschli remarks, to try to fix a 
limit to their size.^ During the medieval age the states of 
Europe were small and numerous. The present states of 
France, Italy, Germany, and Spain were all divided into a 
number of petty monarchies and republics. Almost every 
lordship, says Bluntschli, many towns and even villages 
maintained independent existences with their own consti- 
tutions. But, on the whole, the territorial area of states 
has increased since the seventeenth century. The modern 
tendency is toward a consolidation of those whose territo- 
ries lie within the same geographic unity and whose popu- 
lations belong to the same nationality; and hence the states 
of the future in all probability are likely to be more extensive 

* "AUgemeine Staatslehrc," bk. Ill, ch. 4. 



TERRITORY 73 

in area than those of the present. The increasing need of 
the European states for more territory in which to develop 
their national energy, for the support of their surplus popu- 
lation, and for their expanding commerce has in late years 
led to an organized movement among them to take posses- 
sion of such uninhabited portions of the globe as remain 
unclaimed. Within a very few years the greater part of 
Africa has, as has been said, been partitioned out among the 
powers of Europe. So rapid has been the movement that 
it has been impossible to take effective possession of these 
vast territories except at a few accessible points, and the 
consequence has been the invention of a curious political 
institution, known as the "sphere of influence," as a means 
of delimiting the share of each claimant.^ The practice of 
leasing territories from other states for commercial, mili- 
tary, and naval purposes, where they cannot be purchased 
or otherwise acquired, has also recently been adopted 
by a number of governments.^ 

About all that can be said in regard to the extent of terri- Limits to 
tory is that it ought to be large enough to sustain the popu- 
lation. Rousseau, in his "Le Contrat social," discussed the 
subject at some length and attempted to lay down certain 
general principles regarding the size of the state as he did 
in regard to the amount of population. Nature, he de- 
clared, has fixed a limit to the territory of the state as to the 
stature of a well-proportioned man. It ought not to be too 
vast in extent to be well governed nor too small to maintain 
itself. Administration, he asserted, becomes difficult at 
great distances, as a weight becomes heavier at the end of a 
long lever. It becomes more onerous in proportion as de- 
grees are multiplied, and it enforces the laws in remote com- 
munities with less vigor and celerity, while the people feel 

* See Keltie, "Partition of Africa," ch. 23. 

^Within recent years Great Britain, Germany, and Russia have leased territory 
from China; the United States from Cuba; Belgium from Great Britain on the 
Upper Nile ; and France from Great Britain on the Niger. 



the Size 
of a State 



74 ESSENTIAL ELEMENTS OF THE STATE 

less affection for a government with which they rarely come 
in contact/ Some writers, in discussing the subject, dis- 
tinguish between democracies and monarchies. The nat- 
ural limit of a democracy, said Madison, is that distance 
from the central point which will just permit the most 
remote citizens to assemble as often as their public functions 
demand, and will include no greater number than can join 
in those functions; so that the natural limit of a republic 
is that distance from the center which will barely allow 
the representatives to meet as often as may be necessary 
for the administration of public affairs.^ Alexander Hamil- 
ton pointed out that vast extent of territory contributes to 
the natural strength of the people, while smallness of terri- 
tory encourages usurpers to make attempts upon their 
liberties. The smaller the territory, he said, the more 
difficult for the people "to form a regular or systematic 
plan of opposition," while the larger the territory, the more 
"competent the people to a struggle with the attempts of 
the government to establish a tyranny." ^ 
Territorial Nevertheless, as Bluntschli remarks, the power of a 
ttie Meas°* State is uot always to be measured by its mere extent.* 
ure of a Thus France and Germany, with nearly one tenth the terri- 
Greatness tory, are more powerful states than Russia. The European 
territory of Great Britain comprises only about half the 
superficial area of either Germany or France, yet without 

' "Le Contrat social," bk. II, ch. 9. 

2 "The Federalist " (Ford's ed.), p. 83. 

'See "The Federalist," No. 28, also No. 63. It was one of Montesquieu's 
maxims that liberty flourishes most in small states. In large states, he argued, the 
necessity of holding together widely separated regions and of reconciling conflicting 
interests due to geographical isolation requires strong government and a corre- 
sponding abridgment of freedom. But many instances could be given to show the 
fallacy of this proposition. Equally fallacious is his theory that cold climates are 
favorable to liberty and warm ones to servitude and that democracy is better adapted 
to barren soils than is monarchy. " Esprit des Lois," bks. 14, 17, and 18. For a 
criticism of Montesquieu's theories of the eS'ect of geographical influences on 
liberty, see Lavelcye, op. cit., vol. I, bk. IV, chs. 10, 11, 12. 

* "Allgemeine Staatslehre," bk. Ill, ch. 4. 



TERRITORY 75 

Its dependencies it would compare favorably in power and 
influence with either. The Greek city states were petty 
indeed in point of territory, yet Athens took her place by 
the side of Rome in the history of the world. A state with 
vast extent of territory, especially when a part of it is non- 
contiguous and remote, is difficult to defend in war, and 
vigilance as well as power may be necessary to protect the 
outlying dependencies. 

A city state or a country state of small area is obviously Effect of 
better suited to certain forms of government and methods a^stairon^ 
of administration than a state of vast area where some of its Form of 
the parts are remotely situated from the seat of govern- ment 
ment. A pure democracy might be successful in the 
former when it would be unworkable in the latter. The 
republican form of government, Jellinek observes, is well 
adapted to small states, while monarchy, as a rule, is better 
suited to large ones, though he admits that recently the 
success of certain great democratic republics has thrown 
doubt on the rule.^ "There is," says John Stuart Mill, 
"a limit to the extent of country which can be advanta- 

' "Recht des mod. Staates," p. 74. Montesquieu, as is well known, recommended 
a small extent of territory for republics ("Esprit des Lois," bk. 9, ch. i). "The 
history of the world," wrote De Tocqueville, "offers no instance of a great nation 
retaining the form of a republican government for a long series of years. ... It 
may be advanced with confidence that the existence of a great republic will always be 
exposed to far greater dangers than that of a small one. . . . All the passions which 
are most fatal to republican institutions spread with an increasing territory, while 
the virtues which maintain their dignity do not augment in the same proportion." 
" Democracy in America," tr. by Reeves, vol. I, p. 170. In the debates on the Con- 
stitution of the United States in 1788 the argument was advanced that the territorial 
extent of the union was " too vast and too differently circumstanced to make a general 
government possible." See "The Federalist," No. i. Madison answered the objection 
that a republican government must be confined to a small district by pointing out 
that the objection was due to a confusion of republican government with a democ- 
racy. " Federalist," No. 14. Jefferson wrote, in 1801, of the triumph of the Demo- 
cratic party : " It furnishes a new proof of the falsehood of Montesquieu's doctrine that 
a republic can be preserved only in a small territory. Had our territory been only a 
third of what it is, we were gone." Ford's edition of "The Federalist," p. 50. 
But, says Ford, time would have justified the predictions of the objectors but for 
the changed conditions wrought by the railroad and telegraph. Ibid., p. 6, note i. 



76 



ESSENTIAL ELEMENTS OF THE STATE 



Effect of 
Changes 
in Area 
on the Ex- 
istence of 
the State 



Influence 
of Topog- 
raphy and 
Climate 



geously governed or even whose government can be con- 
veniently superintended from a single center." "There 
are," he said, "vast countries so governed; but they, or 
at least their distant provinces, are in general deplorably 
ill administered, and it is only when the inhabitants are 
almost savages that they could not manage their affairs 
better separately." ^ 

The enlargement or reduction of the territorial area of the 
state does not ordinarily affect its international capacity or 
interrupt the continuity of its life. Sardinia, for example, 
was enlarged to nearly four times its original area and its 
name changed, yet its identity was never considered de- 
stroyed nor its treaty obligations impaired. Prussia, after 
the peace of Tilsit in 1807, lost nearly one third of its 
territory; Saxony by the treaty of Vienna in 18 15 was 
reduced to one half its former size; France in 18 15 and 1871, 
Turkey in 1829 and 1878, Austria in 1859 and 1866, Mex- 
ico in 1848, — all lost more or less considerable portions of 
their territory but in no case was the corporate existence 
of the state affected.^ As an international entity the 
state, however, may cease to exist by being annexed to 
another state, by voluntarily merging itself into another 
state, by being absorbed, or by partition of its territory 
among neighboring states. 

Geographical situation and the shape and conformation 
of the territory, as well as extent of domain, have an im- 
portant bearing upon the institutions and national life of 
the state. These factors determine the occupations and 
industries of the people, the extent and variety of the nat- 



'" Representative Government," ch. 17. Cf. also De Tocqueville: "It may 
be asserted as a general proposition that nothing is more opposed to the well-being 
and the freedom of man than vast empires. ... If none but small nations existed, 
mankind would be more happy and more free." "Democracy in America," vol. I, 
p. 171. 

^ Compare on this point Martens, "Traite de Droit international," vol. I, sec. 68; 
Rivier, "Principes," vol. I, pp. 63-65; Moore, "Digest of International Law," vol. 
I, p. 248; Oppenheim, "International Law," vol. I, pp. 114-118. 



TERRITORY 77 

ural resources, and to some extent the national character 
and even the laws, institutions, and activities of govern- 
ment/ Many of the great political writers of the past, like 
Plato, Aristotle, Machiavelli, Bodin, Montesquieu, Comte, 
and Hume, dwelt upon the influence of natural phe- 
nomena upon the character and institutions of nations. 
Buckle, in his "History of Civilization," emphasized to the 
point of exaggeration, as has been said, the influence of 
climate, soil, and food upon the industrial, intellectual, and 
political development of certain states.^ Montesquieu, in 
his "Esprit des Lois" (bks. 14-18), undertook to establish 
a connection between climatic influences and the laws of 
the state and between the fertility of the soil and forms of 
government. His conclusions, however, abound in para- 
doxes, and his estimate of the effect of climatic influences 
was greatly exaggerated.^ 

That the course of history — economic, social, and politi- influence 
cal — has, however, been determined at many points by graphic 
geographical factors is incontestable.* The existence of the Unity 

^ Von Mohl, "Encyklopadie der Staatswissenschaften," p. 131; Jellinek, 
" Recht des mod. Staates," bk. Ill, ch. 13, tit. i ; Treitschke, " Die Politik," vol. I, 
sec. 6; Ratzel, " Anthropo-geographie," p. 531 fJ; Zacharia, " Vierzig Bucher vom 
Staate," bk. 9; and Huhn, "Politik," ch. i. 

- Ch. 2. For a.n argument against the view that climatic influences determine 
national character, see Hume's essay on "National Character," "Essays," vol. I, 
p. 21. Hume says, " I do not believe that man ever in his spirit or destiny ovi'ed any 
thanks to atmosphere, food, or climate." 

^ Sorel's Montesquieu (trans, by Anderson), pp. 140-141 ; see also Pollock, 
"History of the Science of Politics," p. 83. 

* On this point see George, " Relation of Geography to History " ; Semple, " ."Ameri- 
can History and its Geographical Conditions" ; Smith, " Geography of the Holy 
Land"; Ratzel, "Politische Geographie der Vereinigten Staaten von Amerika," 
also his "Anthropo-geographie"; Freeman, " Historical Geography of Europe"; 
Keltic, "Applied Geography." "To a trifling geographical incident," says Shaler, 
" we owe the isolation of Great Britain from the European continent ; and all the 
marvelous history of the English folk, as we all know, hangs upon the existence of 
that narrow strip of sea between the Devon coast and the kindred lowlands of 
northern France." " The independent political development of England for the last 
thousand years," he continues, "has been in a large part due to the measure of pro- 
tection afforded by the British Channel. While every other country on the continent 



7S ESSENTIAL ELEMENTS OF THE STATE 

petty states of ancient Greece, and the virtual failure of 
all attempts to unite them, separated as they were by inter- 
secting mountain ranges and arms of the sea, afford one of 
the earliest and most striking illustrations of this truth. 
Nothing is clearer than that geographic isolation is un- 
favorable to political unity. It not only retards, in the 
beginning, the unification of neighboring races, but also 
the union of different communities of the same race; it pro- 
motes prejudices and want of sympathy, and, when po- 
litical union has once been established, particularism and 
disunion. Moreover, lack of geographic homogeneity 
determines to a certain extent the activities, if not the form, 
of government. People occupying the different parts of a 
state which are separated from each other by high moun- 
tain barriers, impenetrable deserts, or large bodies of 
water develop local peculiarities and have local needs 
which require special legislation. An insular state like 
England is not only economically dependent upon dis- 
tant parts of the world, but by reason of its exposure to 
attack from the outside must give constant attention to 
questions of national defense.^ The fact that Switzerland 
has maintained its local life comparatively undisturbed 
by the powerful states about it for more than a thousand 
years is due largely to the geographical conditions which 

of Europe, except Scandinavia, which is itself largely a geographical isolation, has 
felt again and again the tread of conquering armies, this group of islands has been 
exempt from successive invasions. Many v/ere attempted, and some would have 
succeeded without the geographical barrier which nature had interposed." "Na- 
ture and Man in America," pp. 153, 159. 

* Of the influence of geographic conditions upon the politics of England, Professor 
Shaler says: "In the wonderful state of Great Britain the national life functions 
vary with reference to the topography of high Asia, the climate and surface of Africa, 
and certain portions of other countries ; and almost every storm and every drought 
which affects the remotest lands and seas reacts upon that state. Ministers, and wit) 
them the purposes of the state, are changed by the chance of some battlefield at the 
antipodes. A bad harvest in the plains of the upper Mississippi means dear bread in 
England, fewer marriages, and shorter lives ; in other words it produces an effect 
upon the social status of the country." " Nature and Man in America," p. 149. 



GOVERNMENT AND SOVEREIGNTY 79 

environ its folk. It might also be shown that the distinc- 
tive political ideas and institutions of the Dutch have been 
determined to some extent by the geographical situation 
of that country and the heroic struggle with nature which 
it has entailed/ 

III. GOVERNMENT AND SOVEREIGNTY 

A third essential mark of the state is the existence of an Necessity 
agency through which the collective will may be ascertained cai^organ- 
and expressed and the ends of the state realized. This ization 
agency, magistracy, contrivance, or organization we call 
government. A mere mass of people occupying a particu- 
lar portion of territory do not constitute a state until they 
have organized themselves politically and established a civil 
government. They must, in short, possess a juristic per- 
sonality and have a common will.^ The governmental 
organization may be simple and its functions few and 
restricted in -their sphere of operation, but there must be 
a political agency of some kind ; there must be governors and 
governed — some who command and others who obey. If 
there are none who possess authority and none who obey, 
remarks Bluntschli, there is no state but only a condition of 
anarchy.^ In the great states of to-day the governmental 
organization is vast in extent and complex in structure, 
but, as in the case of territory and population, quantity 
and extent are not the tests of statehood. The simple 
rudimentary government of an African prince, if capable of 
commanding and enforcing obedience, fulfills the require- 
ments of political organization. 

A final constituent political principle of the state is sover- Sover- 
eignty, in some respects the most important and distinctive "^*^ 

' Cf. Keltic, "Applied Geography," p. 7. 

^ Cf. Schulze, "Deutsches Staatsrecht/' vol. I, p. 17; Hauriou, "Droit adminis- 
tratif," p. 7; Von Mohl, " Encyklopadie, " p. 72; Jellinek, "Recht des mod. 
Staates," pp. 152-155; Duguit, "Droit constitutionnel, " p. 19. 

' " AUgemeine Staatslehre," bk. I, ch. i. 



8o , ESSENTIAL ELEMENTS OF THE STATE 

of all the marks of state organization. In popular usage, 
sovereignty means the original, supreme, and unlimited 
power of the state to impose its will upon all persons, asso- 
ciations, and things within its jurisdiction ; in short, it is that 
quality of the state by virtue of which it may command and 
enforce obedience to the exclusion of all other wills. In 
popular usage the term also has reference to the independ- 
ence of the state from foreign control, that is, its right to 
live its life and pursue its ends independently of the will of 
other states. The former attribute is sometimes described 
as internal sovereignty, the latter as external sovereignty. 
Sovereignty is thus a concept both of municipal law and 
of international law. Whatever may be the differences of 
opinion regarding its nature and abiding place, the majority 
of writers are agreed that there can be no state without 
sovereignty. There must be some supreme power which 
in the last analysis is entitled to lay down commands and 
able to compel obedience.^ It is this which distinguishes 
the state from all other associations and organizations. 
Take it away and the state becomes a mere voluntary pact 
or association. 

Nevertheless, a few writers of high standing do not 
consider sovereignty to be an essential element of state 
existence. There are many communities, they maintain, 
which have their own constitutions and systems of internal 
administration, and hence may be rightfully described as 
states, though they may be under the control, wholly or 
in part, of other states, so far as their foreign relations 
are concerned.^ Such are the so-called protectorates and 

* "Sovereign and subject, governors and governed," says Gumplowicz ("Allge- 
meines Staatsrecht," p. 23), "are the everlasting, unchangeable ear-marks of states. 
There are no states without this principle and no such principle without the state." 

* See, for example, Westlake (" International Law," vol. I, p. 21), who maintains 
that external sovereignty is not essential to constitute a state in international law. 
Westlake maintains the distinction between sovereignty and independence. The 
former, he says, admits of degrees, while the latter does not, and hence a state may 
be partly sovereign, but not partly independent. Yet he says elsewhere that from 



OTHER ATTRIBUTES AND ASPECTS OF THE STATE 8i 

suzerain communities which abound in Africa and the 
orient. Some of them are free from outside control so far 
as their internal polity is concerned, and sometimes to a 
large extent as regards their foreign relations. Some of 
them send and receive diplomatic representatives or at 
least consuls, and sometimes they conclude commercial 
conventions or treaties. Such communities are classified 
as dependent or part-sovereign states, but according to 
the strict tests of political science they are not states, but 
parts of other states. They may become states by shaking 
off their real or nominal dependence, but until then they 
are in legal contemplation mere dependencies of other 
states. 

IV. OTHER ATTRIBUTES AND ASPECTS OF THE STATE 

Land and people, government and sovereign power, are Elements 
thus the indispensable, eternal marks of the state. But nenceTnd 
states possess other qualities and characteristics in addition Continuity 
to these. Most writers, for example, attribute to the state 
the qualities of permanence and continuity.^ It is not 
meant by the quality of permanence, however, that a partic- 
ular state once established endures as such forever, for as a 
matter of fact history abounds in examples of states whose 
existences have been terminated through absorption by other 
states or through a voluntary merging of their existences 
into that of other states. Indeed, it would be quite pos- 

the standpoint of international law there are undoubtedly states not in all respects 
independent (iWJ., p. 87); see also Rivier, o/>. «/., vol. I, p. 52; and Oppenheini, 
"International Law," vol. I, p. loi, who maintains that while a state normally 
possesses "independence all round and therefore full sovereignty," yet there are 
states " which certainly do not possess full sovereignty and are therefore named not 
full sovereign states." Such, he says, are protectorates, suzerain communities, and 
members of so-called federal states, which possess "supreme authority" and 
" independence with regard to a part of their tasks," though they are not "full, 
perfect, and normal subjects of international law." 

* Compare Von Mohl, " Encyklopadie der Staatswissenschaften," p. 71; Blunt- 
schli, "Allgemeine Staatslehre," p. 26; Burgess, " Political Science and Constitu- 
tional Law," vol. I, p. 52. 
POL. SCI. — 6 



82 ESSENTIAL ELEMENTS OF THE STATE 

siblc for the existence of a state to be terminated by the 
voluntary withdrawal of the inhabitants from its territory 
or their compulsory removal, or by the perishing of the en- 
tire population in a common disaster/ What is meant by 
saying that the state is a continuous and permanent es- 
tablishment — eine dauernde Einrichtung, as the Germans 
describe it — -is, that since the state is essential to the 
happiness, if not the very existence, of mankind, the world 
must continue under state organization for all time. No 
other organization or association can fulfill its purposes, and 
whenever a particular form of state disappears, another will 
succeed to its place, and thus the continuity of its life will 
be preserved. It is not to be understood, of course, that 
changes in the governmental organization or internal polity 
of the state necessarily destroy or interrupt its continuity. 
Effect of The governmental organization of the state, in fact, is not 
hfoovern- infrequently changed by revolution, or through legal 
mental Or- alteration, yet the corporate existence of the state itself 
ganiza ion ^^j^^j^^j^j^g Unimpaired and unaffected. Governments are 
not immortal; they are merely the agents or instrumentali- 
ties through which the state for the time being acts, and 
they may be changed or superseded at the will of the sover- 
eign. Monarchies may be transformed into repubHcs and 
republics into monarchies, the rank and titles of rulers 
may be changed, absolute principles may be superseded 
by constitutional principles, without legal effect upon the 
identity of the state, its corporate personality, its rights or 
its obligations. Only when the internal changes in its 
structure result in prolonged anarchy is the existence of 
the state itself involved. France, for example, set aside 
its dynasty, transformed its government from a monarchy 
to a republic, then to an empire, again to a monarchy, 
then became a republic again, again an empire, and is 
now a republic for the third time, but the continuity 
of the state as such has remained unchanged through 

' Cf. Oppenheim, " International Law," vol. I, p. ii8. 



OTHER ATTRIBUTES AND ASPECTS OF THE STATE 83 



all the political transformations through which it has 
passed/ 

The state manifests itself also under other forms and 
reveals other quahties and attributes, depending upon the 
multifarious points of view from which it is considered. 
Viewed objectively, it reveals itself to us as a concrete work- 
ing organization, not a mere mental abstraction or collec- 
tivity of individual will relations. Considered subjectively, 
it appears to us, as the etymological derivation of the word 
implies, as a condition or status rather than a dynamic 
organization. 

Looked at from still another viewpoint, the state is pri- 
marily a social phenomenon; an association for the reali- 
zation of the common social interests of mankind. Some 
writers, looking at it from another viewpoint, lay great 
stress on the state as a legal concept, — ein Rechtshegriff, as 
the Germans say. They dwell upon its character as a j uristic 
person, a corporation of public law, the bearer of public 
rights and obligations. The juristic personification of the 
state has always been a favorite theme of a certain class of 
German and French writers. Some of them, following the 
theories of the Roman law, have attributed to it only a 
limited juristic personality, while others have emphasized 
its character as a real juristic person in the strictest sense 
of the word.^ 

Continental European writers generally dwell upon 



Other 
Aspects 
in which 
the State 
may be 
viewed 



The 
State 
as a 
Juristic 
Concept 



* On the continuity of the state see Oppenheim, "International Law," vol. I, 
p. 115 flf. ; Moore, "Digest of International Law," vol. I, p. 249; Pradier-Foder^, 
"Traite de Droit int. public," vol. I, p. 155; Hall, "International Law," 3d ed., 
p. 22 ; Rivier, " Principes du Droit des Gens, " vol. I, p. 62. 

^ See Gierke's "Das Deutsche Genossenschaftsrecht." Gierke conceives the 
state to be a " Genossenschaft des offentlichen Rechts" rather than a " Korperschafi 
des offentlichen Rechts." For this he is criticised by a recent writer who declares 
" Der Staat ist keine Genossenschaft sondern eine Korperschafi des offentlichen 
Rechts; derselhe ist den fhysischen Personen nicht bloss im Beziig aiif Erwcrb und 
Verlust von Rechten, sondern auch im Beziig auf Entstehung und Untergang gleich- 
gestellt." Werner Rosenberg, "IJber den Staatsbegriff," in the "Zeitschrift fiir 
die gesamte Staatswissenschaft," 1909, Erstes Heft, pp. 49-51. 



84 ESSENTIAL ELEMENTS OF THE STATE 

The the distinction between the state as a public govern 

^i^lu^ mental power — a Korperschaft des offentlichen Rechts — 
which legislates, commands, and exacts obedience, on the 
one hand, and its character as a fiscal personality or ordinary 
corporation of private law, on the other hand. As jiscus 
the state is a concept of private law, capable of entering into 
all or almost all the relations of private law. As such it 
enters into contractual engagements very much as a private 
individual or corporation does; acquires, owns, and ad- 
ministers property; employs agents; brings suits in the 
courts and sometimes allows itself to be made a party to 
suits at the instance of private persons. Thus the 
state possesses both a public and a private character, 
exercises imperium and dominium, governs and trans- 
acts business, etc.^ On the continent of Europe the dis- 
tinction between the state as a public power and a.s Jiscus 
possesses great practical importance owing to the rule 
generally prevailing there that the government is respon- 
sible to the individual in damages for violations of contracts 
to which it is a party as well as for torts committed by its 
officers and agents. This liability of the state as Jiscus is 
enforced by suits brought by the injured individual either 
in the ordinary judicial courts, as in Germany, or in 
special administrative tribunals, as in France. In Eng- 
land and the United States, where the idea of the state 
as a corporation has had less development and where the 
legal responsibility of the state to the individual through 
suits for damages is hardly recognized by the public law of 
either country, the distinction between the state as a public 
corporation and as Jiscus is of less importance. 

'See Jelllnek, "Recht des mod. Staates," bk. Ill, ch. 12; Hatschek, "Die 
rechtliche Stellung des Fiscusim burgerlichen Gesetzbuch"; Duguit, "Droit consti- 
tutionnel," pp. 120-121 ; Hauriou, " Droit administratif " (5th ed.), p. 372 ; Michoud, 
"Theorie de la Personnalite morale"; and "La Responsabilite de I'Etat," in the 
"Revue de Droit public," 1895, vol. IL p. 2 ff. ; Bornhak, " Preussisches Staats- 
recht," vol. II, p. 47 ff. ; Du Crocq, "Cours de Droit administratif," sees. 1055 
et seq.; Goodnow, " Administrative Law," vol. II, p. 149 et seq. and 161 et seq. 



OTHER ATTRIBUTES AND ASPECTS OF THE STATE 85 

Finally, some writers, especially Germans, distinguish The idea 
between the concept of the state (Staatsbegriff) and the idea thtfcon- 
of the state {Staatsidee) . The concept of the state, says ceptofthe 
Bluntschli, presents us a picture of actual states from the 
standpoint of their nature and essential characteristics; 
the idea of the state is that of the state in the splendor of 
imaginary perfection, the state not yet realized in fact, 
but toward which mankind should strive/ The distinction 
is not entirely fanciful, though the accuracy of the termi- 
nology may be open to question. What is intended, is to 
distinguish between a concrete state as it actually is or as 
it has existed in history and the state in the abstract, 
no particular state but the state in general. The one is the 
result of concrete thinking, of inductive logic; the other of 
philosophical speculation and abstract reasoning.^ "The 
idea of the state," says Burgess, "is the state perfect and 
complete ; the concept of the state is the state developing and 
approaching perfection. From the standpoint of the idea 
the state is the world viewed as an organized unit. From 
the standpoint of the concept the state is a particular por- 
tion of mankind politically organized. The former is the 
real state of the perfect future; the latter the real state of 
the past and the present and the imperfect future. With 
the progress of mankind and the development of the 
world the two will tend to become identical."^ 

* "Allgemeine Staatslehre," p. 34. 

* Compare Willoughby, " Nature of the State," p. 14. 

* " Political Science and Constitutional Law," vol. I, p. 49. 



CHAPTER IV 

THE ORIGIN OF THE STATE 

Suggested Readings: Bluntschli, "AUgemeine Staatslehre," bk. 
IV, chs. 7-9; BoRNHAK, "AUgemeine Staatslehre," pp. 15-19; Brown- 
son, " The American Republic," chs. 3-6; Burgess, "PoHtical Science 
and Constitutional Law," vol. I, bk. II, ch. 2 ; Dealey, " The Develop- 
ment of the State," ch. 2; Fouillee, "La Science sociale contempo- 
raine," chs. i and 2; Held, " System des Verfassungsrecht," ch. 11; 
HoBBES, "Leviathan" (Molesworth's ed.),chs. 13, 14, 17, 18; Hume, 
Essay, " Of the Original Contract," " Essays," vol. I ; Jellinek, " Recht 
des modernen Staates," bk. II, ch. 7; Jenks, "History of Politics," 
chs. 2 and 3; Leacock, "Elements of Political Science," chs. 2 and 3; 
Lilly, "First Principles of Politics," ch. 2; Locke, "Two Treatises of 
Government" (ed. by Morley), bk. II, chs. 2, 3, 4, 7, 8 ; Lowell, 
*' Essays on Government," Essay No. 5; Maine, " Early History of 
Institutions," ch. 3; also his " Early Law and Custom," ch. 7; and his 
"Village Communities," ch. i; McKechnie, " The State and the 
Individual," pt. I, ch. 2; McLennan, "The Patriarchal Theory," 
ch. i; MuLFORD, "The Nation," ch. 4; Pollock, "History of the 
Science of Politics," chs. 2 and 3; Posado, "Tratado de Derecho Polit- 
ico," bk. Ill; Rehm, " AUgemeine Staatslehre," sees. 66-69; Ritchie, 
"Darwin and Hegel," ch. 7; also his "Natural Rights," ch. 3; Rous- 
seau, "Le Contrat social," bk. I, chs. 6, 8; Seeley, "Introduction 
to Political Science," lect. Ill; Treitschke, " Politik," vol. I, sec. 4; 
Willoughby, "Nature of the State," chs. 3 and 4; Woolsey, "Po- 
litical Science," vol. I, sec. 62. 



Begin- 
nings of 
State Life 
unre- 
corded 



I. PRELIMINARY OBSERVATIONS 

Inquiry into the circumstances surrounding the origin 
of the state belongs largely to the realm of theory and 
speculation. History records the principal facts regarding 
the establishment of particular commonwealths by men 
already accustomed to political life; it tells us how and 
under what circumstances state organization has spread 
to new lands hitherto unoccupied or inhabited by people 
politically unorganized, and how new forms of state or- 
ganization have superseded other forms. But the cir- 

86 



THE THEORY OF DIVINE ORIGIN 87 

cumstances and conditions under which primitive men 
first saw the light of political consciousness and came 
to associate themselves together under some form of 
political organization are facts veiled largely, if not wholly, 
in the mists of obscurity. Authentic history throws little 
light on the subject, and we must look for the most part to 
the new sciences of sociology, ethnology, and anthropology 
to help us in fathoming the mystery. 

Aristotle tells us that the state was the highest and last 
of the associations formed by man, as it was the only self- 
sufficing one — that is, the only one capable of satisfying 
all the needs of man. We are therefore probably safe in 
saying that it has existed in some form, rudimentary or 
otherwise, wherever civilized men have lived together in 
any considerable numbers. But our knowledge concerning 
the nature of this early authority and of the procedure by 
whit:h it was established rests largely on inference and gen- 
eral! <jation rather than upon historical proof. 

II. THE THEORY OF DIVINE ORIGIN 

Various theories concerning the original institution of 
political authority have been advanced by historical and 
political writers, but as yet it can hardly be said that there 
is any common agreement among them as to the true 
origin.^ 

The oldest of these theories, as Jellinek remarks, is that Meaning 
which attributes the establishment of the state, medi- ^iyine 
ately or immediately, to God or some superhuman power.^ Theory 

* It is not always clear from the discussions of the theories of state origin 
whether, in a given case, an attempt is being made to account for the origin of the 
state as a historical fact, or to explain its justification; that is, the right of the 
state to be. The two questions are, of course, separate and distinct, but they were 
so often confused by the early writers that it is frequently impossible to tell which 
one they were seeking to explain. 

' "Recht des mod. Staates," p. 180. See also Bluntschli, "Allgemeine Staats- 
lehre," bk. IV, ch. 7; Duguit, "Droit constitutionnel," pp. 21-25; Willoughby, 
" Nature of the State," pp. 42-53 ; Woolsey, " Political Science," vol. I, pp. 196-198 
and 497-500. 



88 THE ORIGIN OF THE STATE 

The theory assumes that the will of God was made known 
by revelation mediately or immediately to certain persons 
who were his earthly vicegerents, and by them communi- 
cated to the people by whom obedience was a religious as 
well as a civil duty. The divine theory, as an explanation 
of both the historical origin of the state and its justifica- 
tion, was widely defended in earlier times, when many of 
the chief political writers were at the same time churchmen 
and theologians. Biblical support for it is found in such 
passages as Paul's admonition to the Romans: "Let every 
soul be in subjection to the higher powers; for there is no 
power but of God; and the powers that be are ordained of 
God." ' 
Early During the Middle Ages this doctrine became a sort of 

of'the'^ Christian dogma and was at the bottom of the teaching 
Theory that rulers of states were the anointed representatives of 
God. The celebrated Augsburg Confession of 1530 placed 
the stamp of approval on it when it declared that "all 
authority, government, law and order in the world have 
been created and established by God Himself." The idea 
that in some form the state is an institution of God and 
that rulers govern by divine right, that there is "a divinity 
that doth hedge a king," lasted until the end of the eight- 
eenth century and in some countries even later. The theory 
was especially strong in France, where the claim that the 
"king of France holds his kingdom and his sword only 
from God" was frequently asserted in the controversies 
between the French kings and the Papacy.^ 
Modern We find the same claim put forth in the famous treaty of 

o/tS'°°' the Holy Alliance concluded in 181 5 between the sovereigns 
Theory of Austria, Russia, and Prussia, where it was solemnly as- 
serted by their Majesties that they looked upon themselves 
as being delegated by Providence to govern their peoples, 
that the Christian nations of which they and their subjects 
were a part acknowledged no sovereign but God, to Whom 

* Romans xiii, i. ' Duguit, " Droit constitutionnel," p. 23. 



THE THEORY OF DIVINE ORIGIN 89 

belonged all power, and that their duties as rulers were 
pointed out to them by the same divine authority/ The 
idea in less extreme form is still maintained by some of the 
rulers of Europe to-day, notably by the present German 
emperor, who has frequently asserted the claim to rule by 
divine right. ^ The belief of the masses of the common 
people in the divinity of kings still persists in parts of 
eastern Europe, but as a doctrine of political philosophy 
it received its death blow at the hands of Grotius, Hobbes, 
and Locke. ^ The doctrine of divine right has had its 
advocates among political writers, no less than among 
kings. Bossuet, a noted writer of the seventeenth century, 
in his "Politics as derived from the Scriptures,"- boldly 
asserted that God established kings as His ministers 
through whom He ruled over His people, like a father over 
his children, and who were accountable only to Him for 
their acts. The Protestant monarchomachs of the sixteenth 
century, the Spanish Jesuits, and the noted Filmer in his 
"Patriarcha," written in the middle of the seventeenth 
century, taught essentially the same doctrine.^ 

James I of England, before his accession to the throne, Views of 
in a short treatise entitled "The True Law of a Free Mon- eS^J^* 
archy," laid down the dogma that kings rule by divine right 
and that subjects have no recourse against them, and he 
supported his claims by arguments drawn both from the 
Scriptures and the law of nature. Upon these high author- 
ities he affirmed the doctrine of the sacrosanctness of the 
royal office and declared that as it is blasphemy to dispute 

' Article II. 

' Cf. Duguit, "Droit constitutionnel," p. 23, and Schierbrand, "Germany," 
pp. 17, 21. 

' Willoughby, "Nature of the State," p. 50. P"or a somewhat extravagant de- 
fense of the idea that there is a certain divinity about kings vi'hich serves to secure 
the loyalty of the masses to the government, see Bagehot's "The English Constitu- 
tion," ch. 3, especially pp. 112, 127, 146. 

* Jellinek, op. cit., p. 183 ; Dunning, " Political Theories from Luther to Montes- 
quieu," p. 328. 



90 



THE ORIGIN OF THE STATE 



what God can do, so it is presumption and high contempt 
to dispute what a king can do.* 

Of the merits of the theocratic theory as an account of 
the historical origin of the state, there is now Httle differ- 
ence of opinion among poHtical philosophers. The doc- 
trine that the state was established by an ordinance of God, 
that its magistrates are divinely appointed, that they 
are accountable to no authority but God, the ruler and 
lawgiver of the state, now has few supporters.^ The fact is, 
the state is no more the direct and immediate creation 
of a supernatural power than any of the multifarious asso- 
ciations into which mankind has entered. The authority 
which the state exercises, whatever its origin, must be 
exercised through human agencies and must be humanly 
interpreted, that is, in the last analysis, it is only what the 
state chooses to make it. 

We may accordingly dismiss the doctrine of divine right 
with the statement that it never was anything more than an 
invention of men, designed to bolster up the claims of cer- 
tain rulers to hold their crowns independently of the will of 
the people and to govern absolutely and without accounta- 
bility to any authority except such as they might choose 
to render to God. If the theory meant simply that the 
Creator implanted in the breast of man the instinct for 
order and the impulse which manifests itself in political 
organization, we could accept it.^ Or, if it meant that 



' Dunning, p. 215. Compare on this point Mulford (" The Nation," ch. 4), who 
says: "The nation has a divine foundation and has for its end the fulfillment of the 
divine end in history. . . . There is no human ground on which it can rest. They 
who are intrusted with it hold it as representatives of the nation and as the ministers 
of the divine purpose in the nation. The President and the Congress, as the Crown 
and the Parliament, rule by the grace of God " (p. 56). For a similar view see Brown- 
son's "American Republic," p. 126. 

* Bluntschli, op. cit., bk. IV, ch. 7 ; Duguit, op. at., p. 25 ; Jellinek, op. cit., p. 185. 

' Compare Burgess, " Political Science and Constitutional Law," vol. I, pp. 60-61 ; 
also Hume, "Of the Original Contract," who says: "As it is impossible for the 
human race to subsist at least in any comfortable or secure state, without the pro- 
tection of government, this institution must certainly have been intended by that 



THE THEORY OF DIVINE ORIGIN 91 

magistrates should rule in accordance with the precepts 
and teachings of the Christian religion, and that they owe 
a moral accountability to God for the manner in which they 
exercise their power, few would dissent. Or, if it meant 
that the life of the state began under religious influences and 
that in its earlier stages of development it had a distinct 
theocratic cast, we should be bound to accept the theory. 

The idea that rulers are directed and supported by a influence 
supernatural power is very strong among primitive peoples, gjon^ '" 
They are accustomed to call religion to their aid and to a^o"g 

1 1- • • r 1 • • ^11- Primitive 

seek a religious sanction for their important acts. Obedi- Peoples 
ence to the state is inculcated by them as a religious duty, 
and religious worship is usually supported by their govern- 
ments. Thus Rome had its national religion and its own 
national gods, and the whole of the jus sacrum was regarded 
as a part of the Roman public law.^ In the early stages of 
the life of the state the ministers of religion are the domi- 
nating class, the lawgivers, the statesmen, and the judges. 
The names of Numa Pompilius in Rome, Lanfranc, Anselm, 
and Wolsey in England, Mather, Hooker, Cotton, Edwards, 
and Davenport in North America, belong almost as much 
to political as to ecclesiastical history.^ The pillars of the 
early state, says Burgess, are usually churchmen; the 
priestly class are exalted above the rest of society, and the 
unfaithful are denied membership in the state. 

beneficent Being who means the Good of all his creatures. But he did not estab- 
lish government by any particular or marvelous interposition but by his conceded 
and universal efficiency. A sovereign cannot, properly speaking, be called his 
vicegerent in any other sense than that every power or force being derived from 
him may be said to act by his commission." 

' Cf. Schuize, "Deutsches Staatsrecht," vol. I, p. 661. 

' On the political influence of the early New England clergy, see Osgood, " History 
of the American Colonies in the Eighteenth Century," vol. I, p. 218. They were, 
says Osgood, the chief expounders of the public law of the commonwealth, and their 
utterances on questions of public policy are among the most valuable and authori- 
tative that we have. Their advice was frequently sought, they delivered addresses 
before the legislature, they cooperated in forming the New England Confederacy, 
and no affair of government was indifferent to them. With the magistrates they 
constituted for half a century the governing class of Massachusetts. 



92 



THE ORIGIN OF THE STATE 



Social 

Compact 

Theory 



The 

State of 
Nature 



Early 
Expound- 
ers of the 
Theory 



III. THE COMPACT THEORY 

A theory of state origins which has profoundly influenced 
the poHtical thought of Europe and America for two cen- 
turies is that which is popularly described as the "social 
compact" or the "social contract." ^ This theory ascribes 
the institution of political authority to contract or conven- 
tion, that is, to the deliberate and voluntary agreement of 
the members of the community who, through the instru- 
mentality of a covenant, organize themselves into a body 
politic. This explanation of how the state originated, as 
well as of its right to be, has had many advocates since the 
seventeenth century and has furnished the pretext, if not 
the justification, for numerous revolutions and the institu- 
tion of new governments in the place of old ones.^ Most 
of its advocates assume, to start with, the existence of a 
pre-social or a pre-civil condition of mankind, antecedent 
to the establishment of the state, in which men were unre- 
strained by the prescriptions of positive human law, but 
were subject only to those of the moral law, the law of 
nature or the instincts of reason. This hypothetical condi- 
tion or status, says the philosopher Thomas Hill Green, 
is "a state in which every individual is free to do as he 
likes, and from which individuals escape by contracting 
themselves out." ^ This condition of society is described 
by the writers on the compact theory as the state of nature, 
the status naturalis. 

The first modern writer to expound at length the compact 
theory of the origin of civil society was a clergyman of the 

' Some writers employ the term "compact," others prefer "contract," while 
still others use both terms without discrimination. Little, if anything, is gained by 
insisting on a distinction between the two terms. Compare Ritchie, "Darwin and 
Hegel," p. 210; and Clark, "Practical Jurisprudence," p. 144. 

' Cf. Bluntschli, "Allgemeine Staatslehre," bk. IV, ch. 9. 

'"Political Obligations," p. 2)2>- C)n the compact theory see Jellinek, "Recht 
des mod. Staates," pp. 194-210; Esmein, "Droit constitutionnel," p. 171 ff. ; 
Lowell, "Essays on Government," ch. 4: Gierke, " Genossenschaftsrecht," p. 88; 
Story, " Commentaries," vol. I, pp. 225-227. 



THE COMPACT THEORY 93 

Church of England, Richard Hooker, in a treatise entitled 
"Ecclesiastical PoHty, " published in 1594; and, singularly 
enough, the theory was invented, or at least employed by 
him, to defend the Established Church against the attacks 
of its enemies/ Political conditions in England at that 
time were such as to place the popular mind in a position 
of receptivity for the acceptance of a theory which condi- 
tioned royal authority only upon the consent of the people 
and which considered the relation between king and people 
as contractual in character. In the next century Grotius, 
in his epoch-making treatise on the "Law of War and 
of Peace" (1625), Milton, in his "Tenure of Kings and 
Magistrates," Pufendorf, in his "Law of Nature and of 
Nations," Spinoza, in his "Tractatus Politicus," and more 
especially Thomas Hobbes, in his "Leviathan," published 
in 1 65 1, — all advocated the contract theory, the latter elab- 
orating and defending it at great length and with distin- 
guished ability. 
A In the same century the doctrilne of contract reached Its 
full fruition and found its most powerful advocate in John 
Locke, whose "Two Treatises of Government" was pub- 
lished in 1690, and in the next century by J. J. Rousseau, 
who, in his " Le Contrat social," gave to the theory a 
popularity that it had never before attained. In the po- 
litical thought of America during the revolutionary era the 
doctrines of the "law of nature," the "state of nature," and 
the "compact" theory of society occupied a dominant 
place. With the statesmen of the Revolution the idea that 
contract was the legitimate basis of authority, that govern- 
ment rests on consent, and that no government is entitled 
to the allegiance and obedience of its subjects unless they 
have agreed to its establishment, was almost a part of the 
religious belief of the people.^ 

' Hooker's philosophy later became the basis of Sidney's and Locke's doctrines 
in their attack on Filmer. Cf. Jellinek, op. cit., p. 198. 

* See Merriam, "American Political Theories," p. 49. The compact view is thus 



fl 



94 



THE ORIGIN OF THE STATE 



Distinc- Before proceeding farther with a consideration of the 

tween Vhe ^octrine of the social compact it will be well to distinguish 
Social and between the two applications which have been given to the 
caicom- theory. In the first place, the "compact" theory maybe, 
P^'^* and has been, employed to describe an association or agree- 

ment among the members of a community, still in a state 
of nature, by which civil authority is established. In the 
second place, it may refer to an agreement or a relation 
between the people of a community already politically 
organized, on the one hand, and a particular magistrate or 
ruler, on the other. In the first case, the parties to the com- 
pact are the individuals of the community, each with one 
another and with all; in the second place, the parties are 
the whole society in its corporate capacity, on the one hand, 
and an agent or ruler, on the other. By some writers the 
former is described as the social compact, the latter as the 
political or governmental compact.^ The one represents the 
act by which men in a state of nature establish a political 
or civil society; the other the act by which a political society 
already established institutes a particular government.^ 
One represents a theory of the origin of the state, the other 
a theory of the institution of a particular government. 
The first transaction, therefore, necessarily precedes the 

stated in the preamble to the constitution of Massachusetts (1780), "The body politic 
is formed by a voluntary association of individuals ; it is a social compact by which the 
vifhole people covenants with each citizen and each citizen vnth the whole people, that 
all shall be governed by certain laws for the common good." See also the constitu- 
tion of New Hampshire (1792) for a similar declaration. 

' Ritchie, "Darwin and Hegel," p. 210; Willoughby, "Nature of the State," 

P- 55- 

^ Compare Locke ("Two Treatises of Government," ch.ig, sec. 211, of Morley's 
edition), who recognized the distinction between the " social contract " and the " gov- 
ernmental contract." Rousseau, however, maintained that there was but one con- 
tract in the process by which the state of nature was transformed into the civil state, 
namely, the original association, the social contract. Only society, not government, 
he asserted, was instituted by contract. Government was established by two acts of 
authority, the creation of the office and the appointment of the magistrates. 
"Contrat social," bk. Ill, ch. 16. See also Green, "Political Obligations," pp. 
80-92. 



THE COMPACT THEORY 



95 



latter in point of time and is an essential preliminary con- 
dition to the establishment of the latter. Thus the people 
of a given community may organize themselves by covenant 
into a political society without making a compact with a 
particular ruler or governing body, but they cannot con- 
tract with a ruler until they have become a political society 
and hence have acquired that corporate capacity without 
which contracts cannot be entered into by bodies of men. 

The idea that the authority of rulers rests on compact History 
or contract between them and the people is as old as Plato, °*^J^® 
and its supporters have been able to cite in support of the Theory 
theory numerous historical examples from the Old Testa- 
ment. Such, for instance, were the covenants between the 
elders of Israel and David by which the latter was anointed 
king,* between God and His people relative to the installa- 
tion of Saul as king,^ between Josiah and the people on the 
one hand and the Lord on the other,^ the covenant which 
God made with Noah after the flood, ^ and many others. 
The principles of the Roman law of contract also gave 
support to the idea, and the great Roman jurist Ulpian 
seems to have considered the relation between the Roman 
emperor and the people as being in the nature of a compact.^ 
Throughout the Middle Ages and the early modern period 
the theory of the contractual basis of political authority 
exerted great influence upon the political thought of the 
time, but it should be remembered that it was not the the- 
ory of the origin of civil society — not the original social 
compact — but the theory of the relation between the people 
and their magistrates, between the state and its governing 
authority.^ In this form it had such advocates as Hooker, 

' 2 Samuel v, 3. ^ i Samuel x. ^ 2 Kings xxiii, 1-3. 

^ See Jellinek, op. cit., p. 196 ff. ; also Locke, " Civil Government," bk. 11, ch. 18. 

^ On this point Sir Henry Maine remarks that " long before the theory of the social 
compact had clothed itself in definite shape the phraseology of the Roman contract 
law had been largely drawn upon to describe that reciprocity of rights and duties 
which men had always conceived as existing between sovereigns and subjects." 
"Ancient Law," 3d ed., p. 345. « Jellinek, op. cit., p. 197. 



96 THE ORIGIN OF THE STATE 

Milton, Buchanan, Johannes Althusius, Languet, Filmer, 
Grotius, Pufendorf, and others. Instances of actual con- 
tracts between people and kings are, however, few, and those 
which have been relied upon are hardly such as to establish 
the claims of the theory as a historical fact/ 
An Expia- Nevertheless it is sometimes maintained that if the the- 
the Reia- ^^V cannot be successfully defended as descriptive of an ac- 
tionship tual historical transaction, it can at least be accepted as a 
the People rational interpretation of the relationship which exists or 
and their should cxist between the people and their rulers. In the 
sixteenth and seventeenth centuries, when the struggle 
against absolutism was well under way, the theory came to 
be relied on as a justification of the right of the people 
to depose their rulers when they were guilty of violating 
the terms of the compact made or supposed to have been 
made between them and their subjects.^ It was, for, ex- 
ample, appealed to in justification of the deposition of 
Queen Mary by the Scots, who asserted that "royal power 
was nothing else but a mutual covenant or stipulation 
between king and people,"^ — an idea which had been 
enunciated and defended by one of their countrymen, 
George Buchanan , in his "Rights of Kings among the Scots, " 
published in 1579. The doctrine of contract was not 
defended by political writers alone; it was sometimes 
admitted by kings themselves as expressing the proper 
relation between them and their subjects. Thus we find 

' An example sometimes cited was the agreement between the nobles of Aragon 
and their king, which was embodied in the following formula : "We who are as good 
as you choose you for our king and lord, provided that you observe our laws and 
privileges; and if not, not." Quoted by Ritchie from Robertson's "Charles V," in 
his "Darwin and Hegel," p. 202. 

* Thus said Hooker, " Every particular person advanced into such (regal) au- 
thority hath at his entrance into his reign the same bestowed on him, as an estate 
in condition by the voluntary deed of the people, in whom it doth lie to put by any 
one and to prefer some other before him, better liked of or judged fitter for the place." 
"Ecclesiastical Polity," bk. VHI, ch. 2, sec. 8. Essentially the same opinion was 
expressed by Linguet in his "Vindicise Contra Tyrannos." 

* Quoted by Milton in his "Tenure of Kings and Magistrates." 



THE COMPACT THEORY 97 

James I of England confessing in an address to Parliament justifi- 
in 1609 that "the king binds himself by a double oath to th^D^po-'^ 
the observation of the fundamental laws of his kingdom, sition of 
tacitly as by being a king and so bound to protect as well vio"ate^ 
the people as the laws of his kingdom; and expressly, by !?"^ 
his oath at his coronation, so as every just king in a settled 
kingdom is bound to observe that paction made to his 
people by his laws, in framing his government agreeable 
thereunto according to that paction which God made with 
Noah after the Deluge." ^ Eighty years after this royal de- 
liverance the English people appealed to the "paction" 
theory as a justification for the deposition of James II and 
the election of a new sovereign to succeed him. The Con- 
vention of 1689, which declared the throne vacant and 
which fixed the crown on William and Mary, asserted that 
James had "endeavored to subvert the constitution of the 
kingdom by breaking the original contract between king 
and people" and with having "violated the fundamental 
laws." ' 

Turning now from the theory of the political or govern- 
mental compact which seeks to explain or interpret the 
relation between society and its rulers, if not the actual 
transaction by which particular magistracies are instituted, 
we come to consider in the next place the theory of the so- 
cial compact, the primary original association, through 
which the state of nature is transformed into the civil 
state and the natural man into a citizen with legal rights 
and duties. 

As already stated in an earlier part of this chapter, the The 
writers who have supported the theory of the social compact Na^^ure* 
have predicated as a theoretical starting point the existence 
of a pre-civil or pre-political condition of mankind which 
they describe as the "state of nature," though they dilTer 

' Quoted by Locke, "Civil Government," bk. II, ch. 18. 

* Gardiner, " Students' History of England," p. 646. See also Jellinek, op. cit., 
p. 198. 

POL. SCI. — 7 



oS THE ORIGIN OF THE STATE 

in important particulars concerning its real character. 
Hobbes, who was the first writer to attempt to describe in 
detail the state of nature, considered it to be a state of 
perpetual strife among the members of the society; a war, 
potential if not actual, of all against all {beilum omnium 
contra omnes) ; a state of constant struggle, of fierce and 
brutal competition, and of distrust and suspicion, the hand 
of each being against all/ 
Hobbes on This Condition, Hobbes argued, was the inevitable result 
of Nature o^ the inherent egoism of man, who by nature is a self- 
seeking creature, with a "perpetual and restless desire of 
power," a desire for the gratification of his appetites, a 
craving for glory which ends only with his death. Men 
in the natural state, he said, were like famished wolves, 
seeking to devour one another.^ Natural right, which to 
him was simply natural might, Hobbes defined as nothing 
more than "the liberty that each man hath to use his own 
power for the preservation of his own nature." In such a 
state of society there could, of course, be no distinction 
between legal right and wrong, or of justice or injustice, for 
there is no law, and in the absence of law there can be no 
such things as justice or injustice, right or wrong. ^ Might 
alone under such circumstances determines right, and to 
every one belongs whatever he has the physical power of 
appropriating and keeping.* 

^ "The Leviathan," ch. 17. Hooker, before Hobbes, had undertaken to describe 
the state of nature, but only in a brief way. His views of the condition of the natural 
man were similar to those advanced by Hobbes. See Dunning, p. 211. 

^ Cf. also Spinoza, "Tractatus Politicus," ch. 2, sec. 14, and ch. 5, sec. 2 (Duff's 
ed.), where it is maintained that men in a state of nature are enemies. Cf. also Mon- 
tesquieu's estimate of the "natural" man as a "timid, weak, trembling creature, 
occupied chiefly in panic-stricken flight from the dangers which surround him." 
"Esprit des Lois," bk. I, ch. 2. 

^ Cf . Dunning, p. 270; also Rousseau ("Contrat social," bk. I, ch. 8), who ob- 
serves that natural liberty, unlike civil liberty, has no limits but the strength of the 
individual; see also Ritchie, "Natural Rights," p. 83. 

* For further discussion and criticism of Hobbes's theory of the state of nature see 
in addition to the authorities already cited: Jellinek, op. cit., pp. 200-213; T. H. 
Green, "Political Obligations," pp. 60-67; Huxley, "Natural and Political Rights," 



THE COMPACT THEORY 



99 



To Locke, on the other hand, the state of nature appeared Locke on 



to be not necessarily a state of brutal strife among wild men, 
but rather one in which peace and reason prevail, for man 
is not, as Hobbes maintained, inherently vicious, but is 
animated generally by the instincts of reason and justice. 
He defined the state of nature as a "state of perfect freedom 
to order their actions and dispose of their persons as they 
think fit, within the bounds of the law of nature, without 
asking leave or depending upon the will of any other man." ^ 
But though this be a state of liberty, he continues, yet it is 
not a state of license. "The state of nature has a law of 
nature to govern it, which obliges every one; and [also a 
law of] reason, which is that law [which] teaches all man- 
kind who will but consult it . . . No one ought to harm 
another in his life, health, liberty, or possessions, for all are 
the workmanship of one omnipotent and infinitely wise 
Creator." ^ There being no common authority empow- 
ered to enforce the law of nature, Locke observed that 
"every man hath a right to punish the offender and be 
executioner of the law of nature,^ even to the taking of life, 
thereby freeing society of a criminal who having renounced 
reason and the laws of God hath declared war against all 
mankind, and may be destroyed as a lion or a tiger. And 
this in accordance with the great law of nature, 'whoso shed- 
deth man's blood, by man shall his blood be shed.'"* 
Locke's conception of the state of nature thus differs from 
that of Hobbes in that while, according to him, the liberty 
of the individual is not limited by human law, yet it is lim- 
ited by the law of nature and the dictates of reason ; and 
hence the "natural" man has a right, not to everything he 
is physically capable of appropriating, but only to such 

in his Essays ("Methods and Results"); Woolsey, "Political Science," vol. I, sec. 
62; and Pradier-Fodere, " Prineipes generaux de Droit de Politique," etc., p. 22. 

' Again he says, "Men living together according to reason without a common su- 
perior on earth with authority to judge between them is properly in the state of 
nature." "Two Treatises of Government," bk. II, ch. 3. 

' Op. cit., bk. II, ch. 2. » Ibid., sec. 8. * Ibid., sec. 11. 



the State 
of Nature 



lOO 



THE ORIGIN OF THE STATE 



Inconven- 
iences of 
the State 
of Nature 



things as he can use without depriving others of a similar 
advantage.* In short, with Locke natural liberty is not 
the same as physical power; it is rather might limited by 
the natural right of others. 

Concerning the existence of a law of nature, Locke says 
"it is certain that there is such a law, and that, too, as 
intelligible and plain to a rational creature and a studier 
of that law as the positive laws of commonwealths, nay, 
possibly plainer." ^ Nevertheless, he did not regard the 
state of nature as an ideal condition. He admitted that 
there were "many things wanting" in such a state. Al- 
though man in the state of nature, he said, is the "absolute 
lord of his own person and possessions, equal to the greatest 
and subject to nobody," yet the enjoyment of his wide 
freedom is "very uncertain and constantly exposed to the 
invasions of others," while the enjoyment of his property 
is "very unsafe and very insecure."' First of all, there Is 
the want of an established known law received and allowed 
by common consent to be the standard of right and wrong 
and the common measure to decide all controversies be- 
tween them. "For though the law of nature is plain and 
intelligible to all rational creatures, yet men, being biased 
by their interest as well as ignorant for want of study 
of it, are not apt to allow of it as a law binding to them in 
their application of it to their particular cases." There 
being no common judge or authority to interpret the law 
of nature and settle disputes in accordance with that law, 
each individual must be both judge and executioner and 
the "inconveniences" are very great where men are judges 

* Cf. Ritchie, "Darwin and Hegel," p. i88. Th^ difference between Hobbes and 
Locke is much more one of psychology than of belief as to historical fact. Locke 
recognized, as Hobbes did not, that among the natural instincts and emotions of 
men the altruistic play just as prominent a part as the selfish ones. 

* Op. cit., bk. H, ch. 2, sec. 12. Cf. also Hooker, who says of the laws of nature, 
they "do bind men absolutely even as they are men, although they never have any 
settled fellowship, never any solemn agreement among themselves what to do or 
not to do." " Ecclesiastical Polity," bk. I, sec. le. 

3 Ibid., bk. H, ch. 9. 



THE COMPACT THEORY loi 

in their own cases. In short, in the state of nature, "every 
man must be his own law court, and every man his own 
policeman." Locke's view that the state of nature was not 
a condition of warfare and struggle but rather one of peace 
and order, though somewhat wretched and inconvenient, 
was in substance the view of Milton in his "Tenure of Kings 
and Magistrates" (1649), and of the German jurist Pufen- 
dorf in his "De Jure Naturse et Gentium," published in 
1672. They conceived the state of nature rather as a pre- 
political than a pre-social state, that is, a condition of 
society in which men were united by social bonds, but yet 
without political organization, whereas Hobbes identified 
the state of nature with a condition of society still in a 
virtual state of savagery.^ 

The French writer Rousseau, the third of the great Rousseau 
triumvirate of political philosophers to expound and s?ate% 
popularize the social compact theory, conceived the pre- Nature 
political state of mankind to be one approaching the ideal 
rather than an actual primitive historical condition. In his 
"Discourse on Inequality, " published in 1754, he declared it 
to be in some respects the happiest period of human exist- 
ence. In " Le Contrat social " (1762), where he elaborates 
his views more at length, he describes the state of nature 
as one "where all is common" and where "I owe nothing 
to those to whom I have promised nothing. I recognize 
as belonging to others only what is not useful to me. This 
is not the case in the civil state where all rights are fixed 
by law." ^ Again he says, "Man is born free and he is 
everywhere in chains." ^ From a condition of primitive 

* Compare on this point Dunning, op. cit., p. 319. ^ Bk. II, ch. 6. 

^ Bk. I, ch. I. The fallacy of Rousseau's theory that the state of nature is one of 
perfect freedom has been well shown by Thomas Hill Green. In such a state, 
says Green, "men must have been thwarting each other and only those could be free 
who were not equal to the rest, who by virtue of their superior power could override 
the rest." "Political Obligations," p. 70. A state, however, organized and con- 
ducted according to Rousseau's notions, would have been more of an ideal to him 
than the pre-civil condition. 



I02 



THE ORIGIN OF THE STATE 



"Escape" 
from the 
State of 
Nature 
through a 
Covenant 



simplicity in which man was unfettered by the shackles ot 
authority, where he was free to live his Hfe without being 
bound by the artificial bonds of human laws, he has been 
driven by his own inherent sinfulness into the civil state, 
where he is more or less a slave to the whims of authority. 

Poetic imaginations have often pictured the state of 
nature as an earthly paradise, in which happiness, innocence, 
and the joys of unrestricted freedom abound without limit, 
where equality reigns, where the yoke of law and the bur- 
dens of state press upon the shoulders of no man and where 
none are subjects and none sovereigns.^ But we are safe 
in saying that no such condition of society ever had any 
existence except in the imagination of the poet or the 
philosopher. If any considerable numbers of the human 
race ever lived in a state of nature, so called, the conditions 
could not have been very different from what Hobbes 
conceived them to be.^ 

Escape from this intolerable condition took place, we are 
told, through the process of compact or covenant; that is, 
the men of the community "contracted" themselves out 
of the natural state into a civil state. The advocates of 
the compact theory all agree that in general this was the 
manner of escape, though they differ as to the exact nature 
of the procedure. Thus, observes Hooker, there is no 
relief for mankind from the "grievous injuries and wrongs" 
of the pre-civil state but by "growing into composition 
and agreement amongst themselves by ordering some kind 
of public government, by yielding themselves subject 

* Compare, for example, Pope's " Essay on Man " (III, 148), " The state of nature 
was the reign of God " ; and Shakespeare's portrayal of it is a state where there was 

" No occupation ; all men idle, all ; 
And women, too, but innocent and pure ; 
No sovereignty." 

— " The Tempest, " Act II, scene i. 

^Compare Bluntschli, op. cit., p. 284. Locke admits that "we seldom find any 
number of men who live any time together in this state." Op. cit., Morley's 
ed., p. 259. 



THE COMPACT THEORY 103 

thereunto." ^ According to his view, the social and poHti- 
cal compact were successive parts of the same process, the 
one being a preliminary stage of the other. That is, the 
people first covenanted among themselves to submit to a 
common superior, and then in their organized capacity they 
chose a particular ruler and entered into a compact with him 
by which they promised obedience in return for protection.^ 

It was, said Hobbes, as if each individual should say, Hobbes's 
"I authorize and give up my right of governing myself to ^"^ \ 
this man or this assembly on this condition, that thou 
give up thy right to him and authorize all his actions in 
like manner." ^ Thus there is a mutual surrender of natu- 
ral rights and a bestowal of all "power and strength" upon 
a common superior in return for better secured legal rights 
and the substitution of a single will in the place of a multi- 
tude of conflicting wills. Each individual surrenders for 
the common benefit his natural right to do what he will 
and receives in return the assurance of protection and se- 
curity in that which he has or may rightfully possess. 
Thus, according to Hobbes, there is, in addition to the fun- 
damental original pact by which the state is created, a 
subsidiary pact, by which each man agrees to obey the 
person or assembly who is the choice of the majority. 
"This done, the multitude so united in one person is called 
commonwealth or in Latin a civitas, and the person or 
persons upon whom this power is bestowed is called the 
sovereign and all others are subjects." The covenant 
thus made is irrevocable without the consent of both parties 
to the contract. 

"I readily grant," says Locke, "that civil government is Locke's 
the proper remedy for the inconveniences of the state of ^^^ 

^ "Ecclesiastical Polity" (Morley's ed.), p. 93. ^ Ibid., bk. VIII, ch. 2, sec. 8. 

'"Leviathan," ch. 17. "Weary of the state of war, individuals by a covenant 
agree to devolve their personality, to use the language of the Roman law, upon some 
individual or collection which is henceforth to represent them and to be considered as 
acting with their combined powers." Quoted by T. H. Green, "Political Obliga- 
tions," p. 61. 



I04 



THE ORIGIN OF THE STATE 



Hobbes's 

and 

Locke's 

Views 

compared 



nature which must certainly be great where men may be 
judges in their own case." * Nevertheless, he asserts that 
certain kinds of civil government (or misgovernment) are 
worse than the state of nature (or anarchy), the "incon- 
venience being all as great and as near, but the remedy 
farther off and more difficult." ^ The answer therefore 
to the question whether civil government is preferable to 
the state of nature depends on the character of the govern- 
ment. On the whole, the "inconveniences" and "uncer- 
tainties" of the natural state outweigh the advantages, and 
men are soon "driven into society, " where they "take 
sanctuary under the established laws of government and 
therein seek the preservation of their property." Accord- 
ing to Locke, the transformation occurs through the action 
of the people in "incorporating" themselves into a body 
politic "wherein the majority have a right to act and 
conclude the rest." ^ They "covenant" with each other 
to establish a government, — a covenant they are bound 
by the law of nature to observe, — and out of this cove- 
nant the obligation of obedience and submission arises.* 
"There and there only," he said, "is political society where 
every one of the members hath quitted the natural power, 
resigned it up into the hands of the community in all cases 
that exclude him not from appealing for protection to the 
law established by it." ® This is the original social compact 
by which civil society is established in the place of the natu- 
ral state, not the governmental com.pact between an al- 
ready organized society and a particular sovereign. 

According to Locke, the covenant is between people and 
king; ® according to Hobbes, the king was not a party, but 

' "Two Treatises of Government " (Morley's ed.), p. 197. 

* Ibid., sec. 225. ^ Ibid., sec. 95. 

* Cf. Green, "Political Obligations," p. 69. 

* Op. cit., ch. 7, sec. 87. 

* Ritchie denies that the covenant described by Locke was between king and 
people. He holds that the original compact upon which Locke bases government 
is, just as vdth Hobbes and Rousseau, a compact among individuals (" Darwin and 



THE COMPACT THEORY 105 

only the people each with all. Hobbes considered that the 
authority bestowed on the sovereign was not through agree- 
ment but rather through the surrender of certain rights 
to him. Not being bound himself as a party to the agree- 
ment, he could not be deprived by deposition of the author- 
ity bestowed upon him, and hence to resist him was to 
return to the state of nature. In other words, the right 
of the sovereign to rule is irrevocable and indefeasible.* 
Locke, on the other hand, regarding the king as a party 
to the covenant, held that he might forfeit his office through 
a violation of the terms upon which he was vested with 
authority. Hobbes was in fact the apologist and defender 
of the Stuart pretensions to rule by divine right; Locke was 
the exponent and advocate of the principles of the English 
Revolution against the absolutism of the Stuart kings. 

Rousseau's idea of the social compact was, as has been Rousseau 
said, that of the "original association" by which the state xram^ioa 
of nature was transformed into the civil state, not the act from the 
by which a particular government was instituted. There to the 
is, he said, but one contract and that is the agreement to 
form a civil society. That done, a government is estab- 
lished by a legislative act authorizing the government and 
an executive act appointing the magistrates, but there is 
no contractual element in the process.^ He thus agreed 
with Hobbes in holding that the king was no party to the 
compact, but, unlike Hobbes, he maintained that the sur- 
render of rights was not to a monarch, but to the whole 
society. "Each of us," he said, "puts his person and 

Hegel," p. 206). See also his note in the English translation of Bluntschli's "AIl- 
gemeine Staatslehre," p. 295, where he asserts that Locke's theory is almost iden- 
tical with that of Rousseau. 

* " Leviathan," ch. 14. "This covenant," says Hobbes, "being in the nature of 
the case irrevocable, the sovereign derives from it an indefeasible right to direct the 
actions of the society over which it is sovereign." Ibid., ch. 17. See also Green, 
"Political Obligations," p. 61. 

^"Contrat social," bk. Ill, chs. 16 and 17. But how could a "legislative act" 
precede the establishment of a government ? Manifestly Rousseau's reasoning is less 
logical than that of Hobbes. 



Political 
State 



lo6 THE ORIGIN OF THE STATE 

faculties into a common stock under the direction of the 
general will, and we receive each member as an indivisible 
part of the whole." This "act of association produces a 
moral and collective body" or a "public personage," which 
formerly took the name of "city," but is now called a 
"republic" or "body politic." It is called the state when 
passive, the sovereign when active, and a power when 
compared with its equals.* Rousseau, unlike Hobbes, 
upheld the sovereignty of the people rather than the ab- 
solutism of the king. According to Hobbes, the passage 
from the state of nature to the civil state is through a sur- 
render of rights to a sovereign; according to Locke, through 
the institution of a common superior, to secure rights which 
already existed in the natural state; according to Rousseau, 
through the surrender of rights, not to a sovereign king, but 
to the sovereign people.^ Regarding the nature of the 
original association by which the "passage" from the pre- 
civil state was effected, he said, "each man giving him- 
self to all gives himself to none; and there is not an associate 
over whom he does not acquire the same right as is ceded, 
an equivalent is gained for all that is lost, and man is free 
to keep what he has."^ Again he remarks, "What man 
loses by the social contract is his natural liberty and an 
unlimited right to anything that tempts him which he can 
obtain; what he gains is civil liberty and the ownership 
of all that he possesses." ^ The passage from the state of 

* " Contrat social," bk. I, ch. 6. 

'According to John Austin the transition from the "natural" to the civil state 
involved three stages: (i) the future members of the state to be created jointly resolve 
to unite themselves into an independent political society. This may be called the 
pactum unionis. (2) This done, they jointly determine the constitution of its govern- 
ment. This may be called the pactum constitutionis. (3) Then follows an exchange 
of promises between the inchoate sovereign and his inchoate subjects, the latter agree- 
ing to obey the former, who in turn promises to govern according to the constitution. 
"Jurisprudence" (Student's edition), p. 129. 

' Ihid., bk. I, ch, 6. 

* Ibid., bk. I, ch. 8. "Instead of destroying natural equality," says Rousseau, 
"the fundamental compact substitutes, on the contrary, a moral and legitimate 



THE COMPACT THEORY 107 

nature to the civil state, continued Rousseau, produces in 
man a very remarkable change, by substituting in his con- 
duct justice for interest and giving to his actions a moral 
force which they lacked before. True, he loses "several 
advantages" by the change, but the others gained are so 
very great in comparison that he ought to "bless without 
ceasing, the happy moment which took him forever from it 
[the state of nature] and made of a dull stupid animal an 
intelligent being — a man." ^ 

The idea that man in passing from the state of nature to Biack- 
the civil state exchanges his natural liberty for civil liberty t^e"su°- 
was supported by many writers of Rousseau's time and stitution 
thereafter. Blackstone stated the nature of the transac- cai for 
tion and the advantages of the change as follows: "Every f^/"'.*^ 
man when he enters society gives up a part of his natural 
liberty, as the price of so valuable a purchase; and, in 
consideration of receiving the advantages of mutual 
commerce, obliges himself to conform to those laws 
which the community has thought proper to establish. 
And this species of legal obedience and conformity is in- 
finitely more desirable than that wild and savage liberty 
which is sacrificed to obtain it. For no man that considers 
a moment would wish to retain the absolute and controlled 
power of doing whatever he pleases, the consequence of 
which is, that every other man would also have the same 
power, and then there would be no security to individuals 
in any of the enjoyments of life. Political, therefore, or 
civil liberty, which is that of a member of society, is no 
other than natural liberty, so far restrained by human laws 

equality for that which nature may have given of physical inequality among men, 
and while they may be unequal in strength or genius they become equal by agreement 
and right." Ibid., bk. I, ch. 9. 

' Ibid., bk. I, ch. 8. Compare also Kant, who, speaking of the institution of the 
state, said, "All and each of the people give up their external freedom in order to 
receive it immediately again as members of a commonwealth and the act by which 
they are constituted into a state is termed the original contract." "Rechtslehre,'' 
Eng. trans, by Hastie, p. 169. 



io8 THE ORIGIN OF THE STATE 

(and no farther) as is necessary and expedient for the 
general advantage of the pubHc." * 

IV. CRITICISM OF THE COMPACT THEORY 

Critics of The doctrine that the state originated in compact or 
theXheory qqj^^^^q^ enjoyed a wide popularity during the seventeenth 
and eighteenth centuries, but during the nineteenth it 
underwent a searching criticism, if it did not receive its 
death blow, from the hands of such scholars as Ludwig 
von Haller, Jeremy Bentham, Sir Henry Maine, Thomas 
Hill Green, Edmund Burke, Professor Bluntschli, Sir 
Frederick Pollock, Professor Ritchie and many others. In- 
deed, before the publication of Rousseau's celebrated " Con- 
trat social," the English philosopher Hume had demolished 
the theory by showing the inconsistency of contract as the 
relation between the governed and the governors.^ Ben- 
tham did not consider the theory worthy of extended con- 
sideration, and after referring approvingly to Hume's 
"demolition" of the theory, dismissed it with the following 
remark, "I bid adieu to the original contract; and I left 
it to those to amuse themselves with this rattle, who could 
think they needed it." ^ Sir Henry Maine asserts that 
nothing could be "more worthless" than such an account 
of the origin of society and government as that given by 
Hobbes," while Sir Frederick Pollock characterizes it alto- 

* " Commentaries on the Laws of England " (Chase's ed.), P- 64. The doctrine 
that rights are surrendered when the passage to the civil state takes place is, as Wool- 
sey remarks, utterly false ("Political Science," vol. I, part III, ch. 2). "No rights 
which may properly be called rights are surrendered especially if the state be just. 
If they are rights which properly belong to the individual in the state of nature, 
they will not only be continued but legally defined and guaranteed. The idea is a pure 
fiction. The state is an institution for defining and protecting rights, not for abridg- 
ing or destroying them." See also Ritchie, "Natural Rights," and Fouillee, "Science 
socialecontemporaine," ch. 2. 

*See his treatise, "Of Human Nature," bk. Ill, part II (1740)1 and "Of the 
Original Contract" (1752). 

* "Fragment on Government," ch. I, sec. 36. 

* "Early History of Institutions," p. 356. 



CRITICISM OF THE COMPACT THEORY 109 

gether too harshly as one of the "most successful and fatal 
of political impostures." ^ 

In the first place the theory Is unhistorical. As we have Theory 
already said, history does not afford a single well-authen- icaf'^*°'" 
ticated instance of a state which came into existence through 
deliberate and voluntary agreement among men who were 
not already accustomed to political authority.^ Histori- 
cally, observes T. H. Green, the theory is a fiction.^ The 
classical example usually cited by the advocates of the 
theory is that of the famous Mayflower compact, by which a The May- 
body of emigrants to America in 1620 entered into an compact 
agreement whereby they "solemnly and mutually, in the 
presence of God and of one another, covenanted and com- 
bined themselves together into a civil body politic for their 
better ordering and preservation." "When Carlyle objects 
that Jean Jacques could not fix the date of the social con- 
tract," says Professor Ritchie, "it would at least be a 
possible retort to say that the date was the nth of Novem- 
ber, 1620." * But upon examination this as well as the 
other instances relied upon by the advocates of the theory 
will be seen to be not examples of the founding of new 
commonwealths by men in a state of nature, but merely 
the transplanting to new lands of political institutions by 
men already subject to political authority. Indeed, in the 
case cited above, the transaction was nothing more than the 
extension of an already existing state to a country not yet 
inhabited by civilized races. The Mayflower covenanters, 
in fact, expressly acknowledged that they were "loyal 
subjects" of an existing sovereign, instead of men trying 
to escape from the state of nature.^ If the compact theory 

' "History of the Science of Politics," p. 75. 

* Compare Bluntschli, " Allgemeine Staatslehre," bk. IV, ch. 9. 

' "Political Obligations," p. 63. "* Darwin and Hegel," p. 214. 

* The founding of the commonwealth of Massachusetts, whose constitution asserts 
that the people have entered into "an original, explicit, and solemn compact with each 
other," is sometimes cited also as furnishing the historical proof, but in reality it is 
only an empty declaration, not the record of a historical fact. 



no 



THE ORIGIN OF THE STATE 



Political 
Conscious- 
ness as- 
sumed 



Govern- 
mental 
Compact 
does not 
explain 
the Origin 
of the 
State 



meant nothing more than that the extension of the state 
to new territories, by men already subject to state organiza- 
tion or the creation of a new state form in the place of one 
already existing, is sometimes the result of convention, 
historical examples in abundance could be cited. 

In the second place, the theory must be rejected upon 
grounds of philosophy and reason. It is impossible to 
believe that men in a state of nature could have "con- 
tracted" themselves into the civil state by a deliberate and 
conscious act of convention. The theory assumes the exist- 
ence of what is manifestly not present in the minds of men 
still in the natural state, namely, an already highly devel 
oped political consciousness. "It presupposes," observes 
Burgess, " that the idea of the state with all its attributes 
is consciously present in the minds of the individuals pro- 
posing to constitute the state, and that the disposition to 
obey the law is already universally established. Now we 
know that these conditions never exist in the beginning of 
the political state of a people, but are attained only after 
the state has made several periods of its history." ^ Civil 
society never began by a contract between individuals or 
between an unorganized mass of individuals and a magis- 
trate. The conventional element belongs to a later stage 
of social development. The idea of contract may, as has 
been said, play an important part in changing the form of 
an already existing state, in creating new forms of govern- 
ment, or in extending the state to new territories by persons 
already subject to political authority; but that does not 
explain the circumstances of the original creation of the 
state. 

The form of convention, however, which we have de- 
scribed as the political or governmental compact is not im- 
possible, and, indeed, there are some historical examples of 
such transactions; but the theory even in this form neces- 
sarily assumes the existence of a people already organized 

* "Political Science and Constitutional Law," vol. I, p. 62. 



CRITICISM OF THE COMPACT THEORY HI 

and capable of entering into contractual relations. Men 
in a state of nature cannot enter into compacts with rulers; 
they must first become organized, and when they have done 
this, they already constitute a state. The theory of the 
governmental compact, therefore, does not explain the 
origin of the state any more than does the theory of the 
social compact; it only explains a particular transaction 
in the later development of the state life or defines the 
nature of the relationship between the people in their 
politically organized capacity and their governing authori- 
ties. The theory of the social contract, says Green, im- 
plies a false notion of rights. Since those who contract 
must have rights, the theory implies that individuals have 
certain rights independently of society, which they bring 
with them to the transaction.^ 

The notion of covenant as the origin of political authority Relation 
rests also on a false basis. ^ It would be just as logical, Jj^e^^^a^e 
says Ludwig von Haller, to speak of a contract between an and the 
individual and the sun that he would allow himself to be not oJn" 
warmed by it, or between him and the frost that he would tractuai 
clothe himself better.^ It is sometimes argued, however, 

' "Political Obligations," p. 66. 

* Cf. Jellinek, "Recht des mod. Staates," p. 208. 

' " Restoration of Political Science," quoted by Merriam, "History of Sovereignty," 
p. 65. Compare Lieber, who says, " If we mean (by the contract theory) an actual 
agreement at some definite time between human beings running wild, who enter 
after mature deliberation into a solemn covenant, and that a contract of this sort with 
a particular government or dynasty is binding forever, the idea is radically wrong and 
leads to dangerous conclusions, favoring tyranny or licentiousness." (" Political 
Ethics," vol. I, pp. 283-294.) "The hypothesis of the fundamental pact," observes 
John Austin, "is not only a fiction approaching to an impossibiity that the institution 
of a state or civitas or the formation of a society political and independent was never 
preceded or accompanied by an original covenant properly so-called, or by aught 
resembling the idea of a proper original covenant." Again he says: " If you would 
suppose an original covenant which as a mere hypothesis will hold good, you must 
suppose that the society about to be formed is composed entirely of adult members : 
that all these adult members are persons of sane mind, and even of much sagacity 
and much judgment ; and fairly acquainted with political and ethical science. On 
these bare possibilities you may build an original covenant which shall be a cohe- 
rent fiction. It is hardly necessary to add that the hypothesis of the original cove- 



112 THE ORIGIN OF THE STATE 

that although the contract theory cannot be accepted as an 
explanation of a historical fact, that is, as an account of the 
origin of some actual state in the past, it may nevertheless 
be received as descriptive of the proper relationship between 
the state and its citizens. But even in this form the theory 
is sound only within very narrow limits, if at all, for 
modern political science does not regard the relationship 
between the individual and the state as contractual in char- 
acter. If it were, then it would follow logically that any 
individual would be free to become a party to the contract 
and hence a member of the state, or to refuse at will and thus 
remain in a condition of outlawr\\ Such a view tends to 
make the state a matter of individual caprice, and if the 
doctrine is followed out to its logical conclusion, is subver- 
sive of authority and leads to anarchy and dissolution.^ 
The obligations of the citizen manifestly do not rest on a 
contractual basis. If so, what shall we say of the binding 
force of a covenant when the original contracting parties 
have disappeared? Does the state expire with the death 
of the partners, and must it be renewed by their successors, 
or is the original contract binding forever upon future gen- 
erations who have never consented to the agreement? 
The state The State, declared Edmund Burke, in his "Reflections on 
me«V*art- the French Revolution," "ought not to be considered as 
nership nothing better than a partnership in a trade of pepper and 
coffee, calico, or tobacco, or some other such low concern, 
to be taken up for a little temporary interest and to be dis- 
solved by the fancy of the parties." " It is," he continues, 
"a partnership in a higher and more permanent sense — 
a partnership in all science; a partnership in all art; a 

nant in any of its forms or shapes has no foundation in actual facts. There is no 
historical evidence that the hypothesis has ever been realized." " Jurisprudence," 
pp. 135, 137. 

' Cf. Jellinek, op. cit., p. 208; Bluntschli, op. cit., bk. IV, ch. 9; McKechnie, op 
cit., p. 33; Woolsey, op. cit.,vo\. I, p. 191; Hume, "Of the Original Compact,** 
Works, vol. I, p. 446 ff.; Willoughby, "Nature of the State," p. 125; Lieber, 
"Political Ethics, " vol. I, pp. 283-294. 



CRITICISM OF THE COMPACT THEORY 113 

partnership in every virtue and in all perfection. As the 
ends of such a partnership cannot be obtained in many- 
generations it becomes a partnership not only between those 
who are living, but between those who are dead and those 
who are to be born." ^ The individual thus becomes a 
member of the state, not by admission as to a business 
partnership, not through voluntary adhesion to a con- 
tractual agreement; but he is born a member and becomes 
entitled to the rights and subject to the obligations which it 
creates, just as he is born into the world of nature and be- 
comes subject to the laws of nature and to the restraints 
imposed upon him through the necessities of his very 
existence. The obligations of allegiance and obedience 
do not rest upon covenant or consent, but rather upon the 
general interests or necessities of society, or upon grounds 
of utility. We can no more account for them on the basis of 
consent than we can account for the obedience of the child 
to the parent on the theory of compact. These relations 
are independent of our consent, and we enter into them so 
naturally that we do not stop to inquire into their origin 
or causes any more than we do about the principle of 
gravity or the operation of the laws of nature in general.* 
The theory of the social compact, as the basis of political 
authority, like the theory of divine right, was invented for 
a specific purpose, namely, to establish the right of resist- 
ance upon the part of subjects to sovereigns whenever the 
latter violated their obligations to the former. During 
the period of the Tudor and Stuart absolutism in England, 
when the rights of the people were recklessly violated by 
tyrannical kings, the theory was developed that as the 
subject owed the sovereign obedience, the sovereign in turn 
was bound to protect the subject and govern him justly. 

* Cf. McKechnie, "The State and the Individual," p. 66. 

* "If the reason be asked," said Hume, "of that obedience which we are bound 
to pay to government, I readily answer, because society could not otherwise exist." 
Essays, vol. I, p. 455. 

POL. SCI. — 8 



114 



THE ORIGIN OF THE STATE 



Element 
of Truth 
in the 
Theory 



From this the idea gradually spread that kings owed 
their authority to the people and could be deposed by 
them for abuse of that authority. In short, the relation 
between rulers and subjects came to be regarded as con- 
tractual in character. 

If the contract theory meant no more than that the rela- 
tion between rulers and subjects is one of reciprocal rights 
and obligations, of protection and obedience, we should 
be under the necessity of accepting it in its entirety. To 
maintain, says McKechnie, that "all men ought to have a 
share in molding the form of the constitution of a state 
is a logical and intelligible position; but to hold that the 
individual atoms vote the state itself into existence as the 
result of a unanimous plebiscite is absurd. It is to ignore 
the great truth established for all time by Aristotle, that 
man is by nature a political and social animal and there- 
fore necessarily the member of some state, however crude. "^ 



Expansion 

of the 
Family 



V. THE PATRIARCHAL AND MATRIARCHAL THEORIES 

"The patriarchal theory of the origin of political soci- 
ety," says J. F. McLennan, one of the most learned stu- 
dents of primitive social organization, "stated in its sim- 
plest form, represents society as the enlargement of the 
family, and the family as a group composed at first of a man 
and his wife and children." ^ With the expansion of the 
original family through the marriage of the children new 
families are founded, but the authority of the father of the 
first family, as chief or patriarch, is acknowledged, so long as 
he lives, by the whole body of descendants, however numer- 
ous. In the course of time all the families descended from 
the original father, if they hold together, form a very large 
group which we may call a tribe. Withdrawals from the 
tribe and removal to new territories constitute the nuclei of 
new tribes, and so in the course of time many new tribes 



The State and the Individual," p. 67. 



The Patriarchal Theory," p. i. 



THE PATRIARCHAL AND MATRIARCHAL THEORIES 115 

come into existence. Being united by ties of blood, the 
tribes naturally act together for common purposes, particu- 
larly in the prosecution of foreign war. In time they estab- 
lish some common form of authority and thus become a 
state, at first necessarily simple and rudimentary. Such 
an example was afforded by the ancient Jewish nation, 
founded by the union of the twelve tribes made up of the 
descendants of Jacob, the original first father. In the 
patriarchal family the element of paternity is of course the 
chief fact. Blood relationship is traced only through males, 
and from the same ancestor; that is, kinship is purely 
agnatic. Furthermore, the patria potestas of the Roman 
law is the basis of all authority, that is, the father of the 
family controls all business, religious, and other relations 
of all descendants, no matter how numerous. 

The patriarchal theory, observes McLennan, "so simple Maine on 
and natural, used to be generally accepted as palpably ^^hai*" 
true, like the fact of the sun moving daily round the earth. Theory 
No one thought of proving it and but few of seriously 
doubting it." ^ Its most notable exponent and advocate 
in the nineteenth century was the learned Sir Henry Maine 
in his "Ancient Law" and in his "Early History of Insti- 
tutions." In the former work Maine asserts that "the 
effect of the evidence derived from comparative jurispru- 
dence is to establish that view of the primeval condition of 
the human race which is known as the patriarchal theor}', 
which is defined as the theory of the origin of society in sepa- 
rate families, held together by the authority and protection 
of the eldest male descendant." ^ Regarding the genesis 
of society, he says: "The elementary group is the family 
connected by common subjection to the highest male 
descendant. The aggregation of families forms the ^en5 or 
house. The aggregation of houses makes the tribe. The 
aggregation of tribes constitutes the commonwealth." ^ 

* Ihid., p. 3. ^ Ibid., p. 122. 

' Ibid., p. 1 28. According to Maine, the larger groups (gentes) were sometimes 



Ii6 THE ORIGIN OF THE STATE 

More recent supporters of the patriarchal theory are the 
English writer Donisthorpe and the French writer Duguit. 
The very first state that ever existed, says Donisthorpe, was 
a human family, consisting of a mother and her offspring. 
The family, he asserts, is the earliest form of state. In 
course of time families are drawn together in little groups 
and loosely compounded under a single head, constituting 
the patriarchal state, in which the unit consists of the 
descendants of a living male who exercises power over 
them. The federation of patriarchal groups leads to the 
clan, or house, having a common name and held together by 
common interests. These gentes tend to coalesce until we 
have the tribe and eventually the nation, which organizes 
itself into a state. ^ With most people of Aryan or Semitic 
origin, says Duguit, the patriarchal family has been at some 
time the general form of social group. The male parent, by 
virtue of his age, sex, and ancestry, is recognized in primi- 
tive society as being invested with a particular prestige. 
He is the natural chief, the governor of the little state of 
which the members of the family are the governed. The 
ancient city was merely a union of families in which politi- 
cal power belonged to the father.^ 

held together by a supposititious rather than a real bond of kinship. In such cases 
the larger group was a "fictitious extension of the family." The groups bore a 
common name, regarded each other as descendants of a common ancestor, and were 
drawn together by religious ties and a sense of certain mutual rights and obligations. 

^ "Individualism, a System of Politics," p. 7. A defense of the patriarchal theory 
is made by Paley in his "Political and Moral Philosophy" (bk. VI, ch. i). It is but 
natural, he says, that the descendants of a common progenitor should feel themselves 
allied to each other in a nearer degree than the rest of the species. Experiencing 
many inconveniences from the absence of that authority which their common ances 
tor exercised, especially in deciding their disputes and directing their operations in 
matters in which it was necessary to act in conjunction, they might be induced to 
supply his place by a formal choice of a successor; or rather might willingly and 
almost imperceptibly transfer their obedience to some one of the family who by his 
age or services or by the part he possessed in the direction of their affairs during the 
lifetime of the parent, had already taught them to respect his advice or to attend 
to his commands. 

^ "Droit constitutionnel," p. 39. Sidgwick expresses the opinion that primitive 
states are more likely an aggregate of gentes grouped into larger unions than an 



THE PATRIARCHAL AND MATRIARCHAL THEORIES 117 

In recent years historical and sociological investigation Criticism 
has thrown considerable doubt on the soundness of the patri! 
patriarchal theory. The theory lacks historical proof to ^^^°^ 
substantiate it. Among its more notable critics are McLen- 
nan, in the work already cited, Morgan, in his "Ancient 
Society," and Edward Jenks, in his "History of Politics." 
These writers reject the proposition that the family, related 
only through males, and ruled over by a patriarch, was 
universal in ancient society, or even general. There are 
many examples of rude societies now existing, says Mc- 
Lennan, in which the family differs radically from the 
patriarchal family, and there is much evidence to show that 
such families existed in early times before the patriarchal 
family. In other words, according to their theory the xheMatri- 
matriarchal family, founded on kinship through females, JSeorj 
was the primary social fact. The only direct historical 
evidence produced in support of the former theory, they 
assert, is that the patriarchal family existed in early Rome; 
while there is evidence on the contrary to show that neither 
the elements of patria potestas nor agnation existed in the 
primitive Hebrew family, nor in Greece, nor among the early 
Germans. McLennan's theory is that the genesis of civil 
society goes back of the patriarchal family to the stage of 
polyandry and to the matriarchal family, the former of 
which subsequently developed into the monogamous 
family and the latter into the patriarchal state. ^ The 
same view is held by Edward Jenks, who declares that the 
theory that the "beginnings of society are to be found in 
the single household or group of descendants of a living 

aggregate of natural families. "We may assume," he says, "that the earlier form 
of political society was a comparatively small group of persons regarding themselves 
as kinsmen," that is, groups of persons organized on the basis of real or assumed 
kinship, generally the belief in a common ancestor, and it is possible that in some 
cases such a society may have been produced by the expansion of a single society. 
In any case the element of kinship, either real or feigned, was the principal tie that 
held together early primitive communities. 
* "The Patriarchal Theory," pp. 27, 351, 355. 



Il8 THE ORIGIN OF THE STATE 

man" has been "exploded." Recent discoveries, he as- 
serts, have proved that "the earHest social group, so far 
from being a small household of a single man and his wives, 
is a large and loosely connected group called a pack or 
horde, organized for matrimonial purposes on a very arti- 
ficial plan, which altogether precludes the existence of a 
single family. In such a condition of society promiscuity 
of sexual relations prevails, and kinship is traced, not 
through the father, but through females. Likewise, Jenks 
asserts that the process by which families expand into 
clans and clans into tribes according to Maine's conception 
is, in fact, the reverse. The tribe is the oldest as it is the 
primary group; in time it breaks up into clans; these in 
turn break up into households and ultimately these are 
dissolved, leaving the individual members to constitute the 
units of society.^ Examples of such societies are found 
among the primitive races of Australia, the Malay Archi- 
pelago, and to some extent among the early Celtic races of 
England and Scotland. 
Conciu- Concerning the merits of the matriarchal theory, we may 

say, as has been said of the patriarchal theory, that the 
historical proof of the universality of the matriarchal family 
among primitive peoples is lacking. Doubtless both theories 
account for the genesis of particular state organizations, 
though even then we must take into consideration other 
forces and elements which enter into the process of politi- 
cal organization. Our knowledge of the social institutions 
of primitive peoples in historic times makes it impossible 
to believe that either type of family prevailed universally 
in ancient times, or indeed that the state should have 
developed through the enlargement and expansion of either. 
The family and the state are totally different in essence, 

* "History of Politics," chs. i and 2. This is also the view of Skene in his 
"Celtic Scotland," vol. III. Cf. also Willoughby's searching criticism in his "Na- 
ture of the State," pp. 19-30, and in his "Political Theories of the Ancient 
World," ch. i; and Leacock, "Elements of Political Science," pp. 42-46. 



sions 



THE FORCE THEORY 119 

organization, functions, and purpose, and there is little 
reason to suppose that one should have developed out of 
the other or that there should have been any connection 
between them. 

VI. THE FORCE THEORY 

A theory advocated by some writers is that which attrib- The 
utes the institution of the state to compulsion, as where a of^ForcI 
powerful individual, through sheer physical strength or in the 
preeminence of leadership, brings under his subjection 
people hitherto unorganized politically and imposes upon 
them his authority.^ Thus Hume, in his "Original Con- 
tract," holds that the state came into existence when a 
tribal chieftain or other leader who had acquired great 
influence over his followers during war maintained his 
control over them after the restoration of peace. At 
first he may have ruled by persuasion rather than by com- 
mand, until he could employ force to reduce to subjection 
the refractory and disobedient.^ Manifest necessity, the 
theory holds, would prompt those who fought on the same 
side to array themselves under one leader. Having led his 
followers to victory, he naturally enjoyed a prestige and 
wielded an influence that enabled him to establish and 
perpetuate his control over them in civil affairs. 

As an explanation of how the state originated, the force 
theory has few advocates to-day among political writers; 
yet as an explanation of the basis of state authority it is, 
of course, largely correct. If it meant nothing more than 
that force and power are the most distinctive characteris- 
tics of the state, in short, that the state, unlike all other 
associations of mankind, possesses the power to compel 
obedience from its members, no objection could be made to 
it. It undoubtedly possesses, as Bluntschli remarks, a 
''residuum of truth" in the prominence which it gives to an 

' Cf. Bluntschli, "Allgemeine Staatslehre," bk. IV, ch. 8. 
- Essays, vol. I, p. 445. 



I20 



THE ORIGLN OF THE STATE 



indispensable element in the constitution of the state 
(Macht), and he might have added it tends to correct the 
false impression often created by the contract theory, that 
political authority always rests upon the voluntary consent 
of those who are subject to it. 

Force and compulsion have played an important part in 
the consolidation of states and in the erection of new state 
forms/ Some of the greatest empires of to-day have been 
established through "blood and iron," and it is not alto- 
gether improbable that we shall see more of blood and iron 
methods in the future. In this sense, as McKechnie re- 
marks, all constitutions and governments founded on the 
idea of authority are really modifications of the theory of 
force. ^ 



The State 
an Insti- 
tution of 
Growth 



VII. THE HISTORICAL OR EVOLUTION THEORY 

We are therefore led to the conclusion that the state is 
neither the handiwork of God, nor the result of superior 
physical force, nor the creation of resolution or convention, 
nor a mere expansion of the family. Unlike the contrivance 
or agency through which it manifests itself and which we 
call government, the state is not a mere artificial mechan- 
ical creation, but an institution of natural growth, of his- 
torical evolution. The idea is well stated by a high 
authority as follows: "The proposition that the state is 
the product of history means that it is the gradual and 
continuous development of human society, out of a grossly 
imperfect beginning, through crude but improving forms 
of manifestation, towards a perfect and universal organi- 
zation of mankind. It means, to go a little deeper into the 
psychology of the subject, that it is the gradual realization, 
in legal institutions, of the universal principles of human 
nature, and the gradual subordination of the individual 
side of that nature to the universal side." ^ As Burgess aptly 

* Compare Jellinek, pp. 185-190. ^ "The State and the Individual," p. 67. 

' Burgess, "Political Science and Constitutional Law," vol. I, p. 59. 



THE HISTORICAL OR EVOLUTION THEORY 121 

remarks, the light of poHtical consciousness did not dawn 
upon men in a state of nature all at once, and hence the de- 
cision to establish the state could not have been sudden and 
deliberate, as the contract theoiy presupposes. The idea Genesis 
of the state must have required a long period for its de- g^ate* 
velopment among a people unaccustomed to political au- ^^^^ 
thority and unacquainted with the nature and forms of 
political organization. Political self-consciousness, wholly 
lacking at first, in time appeared in the minds of a few of 
the natural leaders, then it spread by degrees throughout 
the mass of the population and finally became general. At 
first the state came into existence merely as an idea, that 
is, it appeared in a subjective form, without being a physi- 
cal fact. Before its manifestations could be felt and its 
ends realized it must have an objective existence in institu- 
tions and laws. In short, a constitution expressing the 
collective will must be created and then a magistracy must 
be established in accordance with the constitution. His- 
torically, this marks the starting point for the state, but 
for political philosophy it is but an episode, a stage of 
development, in the transition from natural to civil society. 
"The solemn adoption by a people," says an able writer, 
"of such a fundamental instrument is but the act through 
which that v/hich has formerly existed in a more or less 
undefined and vague state is brought into a definite and 
positive state." ^ The state exists in subjective form as 
soon as the common consciousness reaches that stage of 
development from which we may date the beginning of the 
movement which culminates in the formal institution of 
political authority. This point may in fact be reached long 
before the state is known and understood. The clothing 
of the state with the external forms of organization is not 
the final stage in the process, for the simple and rudimen- 
tary character which it takes in the beginning must go on 
developing and expanding as the political consciousness 

^ Willoughby, "Nature of the State," p. 130. 



122 THE ORIGIN OF THE STATE 

Spreads among the masses of the people. With advancing 
civilization it tends to become more complex in form, more 
universal in its range of activities, more indispensable to 
the needs of mankind. But it never attains its final and 
complete development. 

Rightly understood, all of the best elements in the sev- 
eral theories discussed above enter into the historical the- 
ory. The divine element appears in the fact that the Cre- 
ator has implanted in the human breast the impulse which 
leads to association, and in the part played by religion in 
bringing primitive man out of barbarism and accustoming 
him to law and authority. The element of compulsion exer- 
cised by those who possess natural superiority is a powerful 
ally of both religion and evolution in bringing the natural 
man into political and social relationship with his fellows. 
Finally, the elements of contract and consent which lie 
at the basis of all association play an important part in the 
process of establishing and reorganizing particular gov- 
ernments. No one of these elements alone accounts for 
the existence of the state, but all working together, some 
more prominently than others; and all, aided by the forces 
of history and the natural tendencies of mankind, enter 
into the process by which uncivilized peoples are brought 
out of anarchy and subjected to the authority of the state. 



CHAPTER V 

FORMS OF STATE AND ASSOCIATIONS OF 

STATES 

Suggested Readings : Batbie, "Traite de Droit public et adminis- 
tratif,"vol.I,pp. 158-194; Bluntschli, "AUgemeine Staatslehre," bk. 
IV, ch. 3; bk. VI, chs. 1-7 and 24; also " AUgemeines Staatsrecht," 
bk. Ill, chs. I and 2, and his " Psychologische Studien iiber Staat und 
Kirche," pp. 231-291; Bonfils, "Droit international public," bk, I, 
ch. i; Brie, "Der Bundesstaat," Introduction and sees. 8-12; Bur- 
gess, "Political Science and Constitutional Law," vol. I, bk. II, ch, 3; 
Calvo, " Droit international public," vol. I, bk. II; Carnazza-Amari, 
"Traite de Droit international public," vol. I, pp. 259-321; Dahl- 
MANN, "Politik," pp. 13-20; Despagnet, " Cours de Droit inter- 
national public," pp. 84-178; Esmein, "Droit constitutionnel," In- 
troduction; Freeman, "History of Federal Government," chs. i and 2; 
Gareis, " AUgemeine Staatslehre," in Marquardsen's " Handbuch," 
vol. I, pp. 101-115; GuMPLOWicz, "Allgemeines Staatsrecht," pt. II, 
ch. 7; Hall, "International Law," pt. I, ch. i; Hart, "Federal 
Government," chs. 1-5; Held, " Staatsrecht," pp. 320-331; Huhn, 
"Politik," ch, 3; Jellinek, "Recht des modernen Staates," bk. II, 
ch. 20; also his "Lehre von den Staatenverbindungen," Le Fur, 
"L'Etat federal"; Le Fur und Posener, "Bundesstaat und 
Staatenbund"; Lewis, " Use and Abuse of Political Terms," pp. 58- 
67; Meyer, " Deutsches Staatsrecht," sees. 3-4, 9-12; Von Mohl, 
" Encyklopadie der Staatswissenschaften," sees. 40-50; Oppenheim, 
"International Law," pt. I, ch. i; Posado, "Tratado de Derecho 
Politico," bk. VII, chs. 2 and 3; Pradier-Fodere, " Traite de Droit 
international public," vol. I, ch. 2; Rehm, "AUgemeine Staatslehre," 
sees. 17-23; RiviER, "Principes du Droit des Gens," vol. I, bk. II; 
Schmidt, "Der Staat," sees. 13-15; Schulze, "Deutsches Staats- 
recht," vol. I, bk. I, chs. T, and 4; Seeley, "Introduction to Political 
Science," lects. II, VI, VII, VIII; Treitschke, "Politik," vol. II, 
sees. 13-22; Waitz, "Grundziige der Politik," pp. 35-42; Wester- 
kamp, "Staatenbund und Bundestaat," sees. 7-13; Willoughby, 
"The Nature of the State," ch. 10; Woolsey, "Political Science," 
vol. II, pt. Ill, chs. 7-8; Zacharia, " Vierzig Biicher vom Staate," 
vol. Ill, bks. 16-19. 

I2J 



124 FORMS OF STATE AND ASSOCIATIONS OF STATES 



Points of 
View from 
which 
States 
may be 
classified 



I. PRINCIPLES OF CLASSIFICATION 

So far as their legal nature and their fundamental pur- 
poses are concerned, all states are essentially alike and 
permit of little or no differentiation. In other respects, 
however, they possess elements of difference, like objects 
of nature, and may be classified from various points of view. 
Thus, as regards the form of their constitutions, their 
governmental organizations, their territorial area, the ex- 
tent of their resources, the degree of influence which they 
exert in the political affairs of the world, etc., they present 
a multitudinous variety of types. ^ From the viewpoint 
of territorial area the types range all the way from petty 
principalities to vast empires embracing as much as one 
eighth of the earth's surface. From the standpoint of 
their military and naval strength and of their influence in 
international relations they may be classified as the "great 
powers" and the "lesser powers," though legally they all 
stand on a footing of equality.^ 

In a treatise on political science, however, classifications 
based on territorial area, population, resources, and simi- 
lar characteristics have little value. Such classifications, 
for example, as agricultural, commercial, and industrial 
states have no more interest for the political scientist than 
a classification of animals on the basis of size, strength, or 
color has for the natural scientist.^ For our purpose, the 
basis of classification must be some scientific principle, 
some juristic or political characteristic, which will serve to 
distinguish states in their essence and fundamental consti- 
tution. 

* For an exhaustive classification of the multifarious forms of states by numerous 
writers see Jellinek, "Recht des mod. Staates," p. 646, n. i. 

' A few writers come pretty near to attributing to the "Great Powers" a legal as 
well as a political superiority, inasmuch as these states exercise in fact a "primacy" 
or "overlordship" over the smaller states — a supremacy often recognized in interna- 
tional conventions. See Oppenheim, "International Law," vol. I, p. 164; and 
Lawrence, "Principles of International Law," sees. 134-135. 

' Compare Jellinek, p. 647. 



MONARCHIES, ARISTOCRACIES, AND DEMOCRACIES 125 

Two such principles or bases of classification have com- Principles 
mended themselves to writers on political science. They gcftion ' 
are: first, the form of governmental organization through 
which the state manifests itself; and second, the number of 
persons in whom the sovereign power of the state rests. 
Classification on the basis of forms of government has been 
a favorite, if not the accepted, principle among political 
writers; but it is open to the objection of being unscientific 
and, to some extent, illogical. To classify states on the 
basis of the nature and forms of their governments is very 
much like classifying railroads, for example, with respect 
to the organization of their boards of directors. Such a 
classification in its last analysis is nothing more than a 
classification of governments, not a classification of states. 
Strict logic, therefore, would seem to require an observance 
of the distinction between states and their governments, 
and a classification of each on the basis of some distinctive 
characteristic of its own. Much confusion and misconcep- 
tion have resulted from the failure to observe this impor- 
tant distinction. In this work, we shall, as far as possible, 
observe the distinction and shall consider first the forms 
of state. 

II. MONARCHIES, ARISTOCRACIES, AND DEMOCRACIES 

On the basis of the number of persons in whom the According 
sovereign power is vested states may be classified as mon- *° p"™on" 
archies, aristocracies, and democracies. A monarchy is a in whom 
state directed by a single supreme will; * an aristocracy is eignty re- 
one in which the exercise of sovereignty^ resides in a com- ^^^^^ 
paratively small number of persons; while a democracy is 
one in which the exercise of sovereignty rests with the 
mass of the population. This was the famous classification 

^ Jellinek, "Recht des mod. Staates," p. 653; Treitschke, "Politik," vol. II, p. 53; 
and Meyer, " Deutsches Staatsrecht," sec. 9. A monarchy, says Pradier-Fodere 
("Principes generaux de Droit de Politique," etc., p. 242), is a state in which a 
single person, generally called a king or emperor, exercises sovereignty in the name 
of and by delegation, express or implied, of the nation. 



126 FORMS OF STATE AND ASSOCIATIONS OF STATES- 

of Aristotle and in substance it was adopted by Cicero, 
Polybius, and other ancient political writers.^ In his " Poli- 
tics" Aristotle, apparently without distinguishing between 
state and government, said : "We usually call a state which 
is governed by one person for the common good, a mon- 
archy; one that is governed by more than one, but by a 
few only, an aristocracy. . . . When the citizens at large 
govern for the public good it is called a polity, which is 
also a common name for all other governments." ^ Aris- 
totle further subdivided each of the above forms on the 
basis of the manner or motive according to which the sov- 
ereignty was exercised. Thus, according to him, there 
were three pure or normal forms and three corrupt or 
abnormal types. 
Pure or In a pure monarchy the power of the state is completely 

Monarchy identified with the person of the individual who is the 
bearer of the sovereignty; he is not sovereign one moment 
and subject the next; he is always the state. The old 
Roman maxim, Quod principi placuit legis hahet vigorem, 
and the more modern French proverb. Qui veut le roi, si 
veut la lot, fully describe the attributes of a real monarch. 

'Aristotle, "Politics," III, 7; "Ethics," VIII, 12; Cicero, "De Republica," I, 
26; Polybius, "History of Rome," VI, 3. 

^Willoughby, "Political Theories of the Ancient World," p. 171. Schulze, 
Treitschke, and Meyer, well-known German scholars, regard aristocracies and 
democracies as special forms of a republic. There is no fundamental difference 
between an aristocracy and a democracy, they maintain, the only distinction being 
one of degree. Schulze, "Deutsches Staatsrecht," vol. I, p. 32; Treitschke, 
"Politik," vol. II, pp. 5 ff. Treitschke maintains that the difference between a 
monarchy and a republic is this : a monarchy is a form of state in which a single 
individual rules as of right; a republic is one in which one or more individuals rule, 
not as of right, but in virtue of delegated power. The test is not, he says, whether 
one or more are vested with the sovereign power, but whether the power is exercised 
of right or by delegation. Somewhat the same view is held by Jellinek, who main- 
tains that all non-monarchical states are in reality republics, the distinction being 
merely quantitative rather than qualitative. Aristocracies, oligarchies, democracies, 
and timocracies should in strict logic, therefore, be grouped under the head of 
republics. In this case we should have aristocratic republics, oligarchic republics, 
democratic republics, etc. "Recht des mod. Staates," p. 694. 



tion 



MONARCHIES, ARISTOCRACIES, AND DEMOCRACIES 127 

In strictness there can be no such thing as a Hmited mo- 
narchical state, for all states are legally absolute and un- 
limited. There may, however, be limited monarchical 
governments. The so-called limited monarchical state 
is in fact a democratic or aristocratic state having a con- 
stitutional government in which the executive power is 
vested in a monarch. 

The Aristotelian classification has been criticised on Criticism 
several grounds. In the first place, the classification, it is teiian 
said, does not rest on any organic fundamental principle, ^|^^^''^**' 
but upon mere numbers and hence is mechanical rather 
than spiritual, quantitative rather than qualitative in 
character.^ The answer which has been made to this 
criticism is that the number of ruling persons may indicate 
the degree to which political self-consciousness has spread 
among the population and hence the capacity of the people 
for self-government.^ Professor Seeley criticised Aris- 
totle's classification on the ground that it was scarcely 
applicable to the states with which we have to deal to-day. 
In view of the "marvelous difference" between the "coun- 
try states" of the present and the city states of Aristotle's 
day, said Seeley, they cannot be placed in the same class.' 

• This is the criticism, for example, of Von Mohl in his "Encyklopadie der Staats- 
wissenschaften," p. in. 

^Compare Burgess, "Political Science and Constitutional Law," vol. I, p. 73. 
The German writer Schleiermacher, in his "Idea of the Different Forms of State" 
("Uber die BegrifFe der verschiedenen Staatsformen"), published in 1814, recog- 
nized the value of this principle in his attempt to classify states on the basis of the differ- 
ent stages in the development of the political consciousness of the people. If this 
consciousness was widely diffused among the masses of the people, then the state 
was a democracy; if it had taken possession only of a minority of the population, 
it was an aristocracy, and so on. A somewhat similar principle lay at the basis of 
Rohmer's classification, which was based on the four stages of party development. 
See his "Lehre von den politischen Parteien," sec. 219 ff. 

* "Introduction to Political Science, " lect. II. For further criticism see Blunt- 
schli, " Psychologische Studien iiber Staat und Kirche," pp. 234-242; Sidgwick, 
"Elements of Politics," ch. 30; Lewis, "Use and Abuse of Political Terms," sub 
verba "Monarchy"; Willoughby, "Nature of the State," pp. 362 flf.; and Dunning, 
"Politics of Aristotle," in the " Political Science Quarterly," vol. XV. 



128 FORMS OF STATE AND ASSOCIATIONS OF STATES 

In essence, however, the states of antiquity were not differ- 
ent from those of to-day, though of course there was a wide 
difference in the form and character of their governments. 
Again, it is objected that since there are practically no 
civilized states to-day in which actual sovereignty, political 
as well as legal, is reposed in a single person or a small 
class, the classification of states on the basis of the location 
of sovereignty is practically worthless. Furthermore, the 
attempt to distinguish between aristocracies and democ- 
racies must inevitably lead to hair-splitting, since there 
is no fixed criterion for determining where the one ends 
and the other begins. Moreover, a practical difficulty 
is encountered when we attempt to apply such a 
principle of classification to a state like Great Britain, 
where the legal sovereignty is in the legislature, and the 
political sovereignty is in the electorate. On the former 
basis England would have to be classed as an aristocratic 
state; on the latter as a democratic state, though it is 
officially and popularly styled a monarchy. But if the 
Aristotelian classification be confined to its original mean- 
ing, the objections will not appear so well founded as they 
seem. Most of the confusion has arisen from the failure 
to discriminate between forms of state and forms of gov- 
ernment, and from the practice of treating as monarchies all 
states that have hereditary executives, however democratic 
they may be otherwise. Such usage puts into the same 
class states as widely different as Great Britain and Tur- 
key, and in different classes those so nearly alike as Great 
Britain and the United States. If rightly applied, the 
Aristotelian principle will not produce any such absurd 
classifications. 

III. THEOCRACIES 

The Pure The so-called theocratic state is one in which the ultimate 
Limited Sovereignty is attributed to some superhuman or spiritual 
Theocracy being. German writers on the state generally distinguish 



THEOCRACIES 129 

between two types of theocracy, the pure form and the dual- 
istic or limited form. The pure theocracy is one in which the 
supernatural person to whom the sovereignty is attributed 
is alleged to rule directly and immediately without the 
aid of human intermediaries. The limited or dualistic 
theocracy is described as one in which the immediate ruler 
is not God, but a human king who rules as his vicegerent 
and acts as the interpreter of the divine will, which is made 
known to him by revelation. He is guided and directed 
by God, to whom alone he is responsible. In the dualistic 
theocracy there is a separation between religious and civil 
affairs, each being administered by different authorities. 
The pure theocracy belongs to the most primitive stage of 
society; the dualistic type to a later, though still somewhat 
undeveloped, stage. 

Bluntschli gives as examples of pure theocracies Ethiopia, 
ancient Egypt, Persia, and the kingdom of the Jews.* 
To this list Von Mohl adds ancient Mexico and Peru.^ 
The Mohammedan states of the Middle Ages were also 
largely theocratic in character. Mohammed considered 
himself the vicegerent of God, and the Koran contained 
the law and jurisprudence by which his people were gov- 
erned. The caliph was both emperor and pope, and reli- 
gious and temporal affairs were not clearly differentiated 
from one another. Other states of Europe until compara- 
tively recent times possessed theocratic elements; and, as 
is well, known, some of the early communities of North 
America were founded on a religious basis. ^ 

^ "AllgemeineStaatslehre," vol. I, bk. VI, ch. 6. For further accounts of the theo- 
cratic state see Von Mohl, "Encyklopadie," pp. 104-105, 113 ff. ; Jellinek, "Recht des 
mod. Staates," pp. 180 flF. ; Duguit, "Droit constitutionnel," pp. 21-25; Waitz, 
" Grundziige der Politik," pp. 36-42; Willoughby, "Nature of the State," pp. 
42-53; Woolsey, "PoHtical Science," vol. I, pp. 196-198, 497-500; Batbie, "Traite 
de Droit public et administratif," vol. I, ch. 43. 

* "Encyklopadie," p. 319. 

^ Such was the New Haven colony, where membership in the body politic was 
restricted to church members "whose lives successfully bore the test of the most 
rigid scrutiny." The church was the "cornerstone of the political edifice;" and the 
POL. SCI. — 9 



130 



FORMS OF STATE AND ASSOCIATIONS OF STATES 



Influence 
of Theo- 
cratic 
Elements 
in Early 
Societies 



The so-called theocracy was one of the most common 
forms of primitive state organization and was well adapted 
to the infancy of political communities, since religion is 
the most powerful agency for organizing and fixing to the 
soil wandering, barbaric tribes, inculcating in them respect 
for authority and placing them in a position of receptivity 
for civilization. It was religious influences that led the 
Teutons along the path of civilization and brought them 
under the yoke of law, that lay behind the political organi- 
zation of western Europe by the Carolingians, that pro- 
moted the organization of the scattered tribes of Russia 
into a state; and it is to-day very largely the power which 
secures the attachment and loyalty of the masses to the 
Russian throne. In the same way it was Mohammedan- 
ism that wrought the feeble states of Islam into a mighty 
state organization, which founded populous cities and over- 
threw empires. It would be easy to show that the English 
state had its roots in the church. For a long time the alli- 
ance between church and state was the main support of 
the state; indeed down to the reign of Anne, says Seeley, 
the English church was the English state in a certain sense. 
For many centuries the church continued to exercise a wide 
degree of civil jurisdiction, and churchmen enjoyed equal 
authority with the officials of the state in the performance 



Holy Scriptures became the code for the government of the community through the 
adoption of a resolution "that thewordeof God shall betheonely rule to be attended 
unto in ordering the affayres of government in this plantation." Osgood, "The 
American Colonies in the Seventeenth Century," vol. I, p. 323. To a less extent the 
colonies of Massachusetts and Plymouth had at first a theocratic character. Calvin's 
"Institutes of the Christian Religion" was the chief political as well as the chief 
religious text-book of the Puritans. Their politics were largely colored by its teach* 
ings, and there existed an organic connection between church and state. It was the 
duty of the church, says Osgood (ibid., pp. 201-202), to create a perfect Christian 
society and the duty of the state to furnish the necessary external conditions. They 
accepted Calvin's doctrine that lawful magistrates are divinely commissioned and 
their work a part of the plan of Providence, and that it is the duty of the state to 
punish idolatry, blasphemy, and other offenses against religion. In the Southern 
colonies the clergy exerted a less powerful influence in public affairs. 



THEOCRACIES 131 

of the various secular functions.^ But as time passed the 
state everywhere tended to become more and more secu- 
larized, came to lean less upon the support of the church, 
and finally was able to support itself without religious 
props.^ 

"Theocracies and despotisms," observes an able writer, 
"have their place in the historical development of the 
state; and their work is as indispensable in the production 
of political civilization as is that of any other form of 
organization. We have not done with them yet, either. 
The need of them repeats itself wherever and whenever a 
population is to be dragged out of barbarism up to the 
lowest plane of civilization." ^ Juridically, however, the 
theocracy is not a distinct form of state, but is either a 
form of monarchy or aristocracy.^ The sovereignty may be 
imputed to God or some other extramundane power, but 
the fact remains that whoever, whether priest or prophet, 
in the final analysis, interprets the will of this supernatural 
authority and enforces its commands, is, so far as political 
science and constitutional law are concerned, the actual legal 
sovereign. Ultimately God may be the ruler and source of 
authority, but his power must be humanly interpreted, made 
known, and immediately exercised through human agencies. 
The so-called theocratic state must, therefore, according to 
the basis of classification which we have laid down as the 
correct one, be either a monarchy or an aristocracy. 

^ In England down to 1857 the ecclesiastical courts had jurisdiction of such mat- 
ters as marriage and divorce, wills, the care of minors and orphans, etc. 

^ Cf . Seeley, " Introduction to Political Science," lect. II. 

^ Burgess, "Political Science and Constitutional Law," vol. I, pp. 60-61. 

■* Bluntschli, however, maintains that the theocracy is neither a form of monarchy, 
aristocracy, nor democracy, but that it belongs to another fundamental type which 
he designates as Ideokratie. In a theocracy, says Bluntschli, the real rulers are 
men conceived of as spiritual beings rather than as human personalities. " Psy- 
chologische Studien uber Staat und Kirche," p. 238. See also Von Mohl, " En- 
cyklopadie der Staatswissenschaften," p. 104; and Leo, " Naturlehre des Staates." 



132 FORMS OF STATE AND ASSOCIATIONS OF STATES 



IV. OTHER CLASSIFICATIONS 

Many attempts have been made by later writers to im- 
prove on Aristotle's classification. 

Thus, Machiavelli and Montesquieu classified states as 
monarchies and republics, and this classification has been 
followed by a number of recent scholars.^ The German 
scholar Waitz classified states as republics, theocracies, 
kingdoms, unitary states, composite or compound states 
(Gesammtestaaten) , federal states, and confederations.^ 
Von Haller classified them as principalities and free 
communities, the latter being subdivided into patri- 
monial states, priestly states, and military states. Gareis, 
a more recent German writer on political science, 
recognizes two general types of state: the unitary state 
{Einheitsstaat) and the composite state {Staatenstaat) . The 
first is the simplest form of state, though it may be divided 
for convenience of administration into provinces, districts, 
etc., having little or no local autonomy. The composite 
state is one composed of communities which themselves 
have certain of the characteristics of states. Composite 
states, says Gareis, are of three kinds: real unions, federal 
unions, and confederations.^ This classification is fol- 
lowed by many writers, especially those on international 
law. Pradier-Fodere, a noted French publicist, classified 
states as separate or independent and as united. • The 
first class he subdivided into (a) personal unions, {h) 
real unions, (c) incorporate unions. The second group 

^ Notably by Schulze, Treitschke, Georg Meyer, Sir George Cornwall Lewis, and 
Frederick Martens. Treitschke also enumerates the Cultiirstaat among the forms 
of state. "Politik," Vvol. I, p. 81. Bluntschli considers Montesquieu's classification 
to be a distinct improvement upon that of Aristotle, for the reason that it is not 
based merely on numbers but on a spiritual or moral principle, namely, virtue 
and moderation. Op. cit., bk. VI, ch. 4. 

° "Grundziigeder Politik," pp. 36-42. 

^"Allgemeine Staatslehre," in Marquardsen's "Handbuch des offentlichen 
Rechts," vol. I, sec. 38. 



OTHER CLASSIFICATIONS 133 

he subdivided into (a) confederate states and (6) federal 
states/ 

One of the most distinguished German writers, Robert Von 
von Mohl, in his "Encyclopedia of the Political Sciences," ciassiL 
written about the middle of the nineteenth century, attempted cation 
a most elaborate classification of states, though without 
reference to any single consistent principle or criterion. 
His classification was as follows: first, patriarchal states; 
second, theocracies, or those which have a religious pur- 
pose and which are under the guidance and direction of a 
supernatural power; third, patrimonial states;^ fourth, 
classic or antique states, such as those of early Greece and 
Rome; fifth, legal states {Rechtsstaaten) , or those whose 
sphere of action is determined by law and whose activites 
are regulated by legal norms ;^ and sixth, despotic states, or 
those which are ruled without regard to the prescriptions of 
law. Von Mohl recognized also a form which he called the 
military vassal state, and he subdivided classic states into 
monarchies, aristocracies, and democracies/ An examina- 
tion of Von Mohl's classification will show, as has been 
said, that it is based upon no single logical or scientific 

* "Traite de Droit international public," vol. I, p. 215. Ch. 2 of this work con- 
tains a good discussion of the forms of state. 

^ A patrimonial state is one in which not only the political sovereignty but also the 
ownership of the land embraced within the territorial limits of the state is attributed 
to the ruler. That is, the king not only exercises sovereignty over the land, but do- 
minion also; he is not only ruler, but proprietor. The idea of such a relation is 
frequently referred to in the literature of antiquity ; it occupied an important place in 
early Germanic law, and in a sense was the basis of the feudal system. The patri- 
monial state was recognized by the early writers on international law, Grotius, Pufen- 
dorf, Wolf, and others. See Jellinek, 0/). cit., s. 192-194; also Merriam, "History 
of Sovereignty," ch. 4. 

^ The Rechtsstaat is a form of state concerning which the German writers have 
written much. See, e.g., Gneist, " Der Rechtsstaat, " especially ch. 4. Gneist defines 
the Rechtsstaat as the " Organismus welcher der zerfahrenen Lehre der heiitigen Gesell- 
schaft die Grtmdlage der hilrgerlichen Freiheit zu geben vermag"; Bahr, "Der 
Rechtsstaat," sees. 4-5; Maurus, "Der moderne Verfassungsstaat als Rechsstaat, " 
sspecially pp. 59-110; Gumplowicz, "Rechtsstaat und Socialismus." 

* " Encyklopadie der Staatswissenschaften," sees. 15, 43, 44, 47, 48, 50. 



134 FORMS OF STATE AND ASSOCIATIONS OF STATES 

principle. Some of the forms which he enumerates over- 
lap one another, while others are whojly inapplicable to the 
states of the present day. Thus, the patriarchal state is 
at the same time a monarchy and so is the theocracy, the 
despotism, and the patrimonial state. Moreover, all states 
are despotic in the purely legal sense, and all states are 
legal states in the sense that they are the source of law and 
' govern according to the prescriptions of law. To classify 
states as "classic" or antique is about as logical and scien- 
tific as to classify them as "territorial" states, "human" 
states, "medieval" states, "modern" states, etc. Such 
terms do not belong properly to the nomenclature of politi- 
cal science, but to that of literature and history, and hence 
such classifications have little or no scientific or practical 
value. ^ 
Blunt- Bluntschli conceived the "fundamental" forms of state 

ciassifi- to be four in number: monarchy, aristocracy, democracy, 
cation and ideocracy or theocracy, the last in its perverted form 
being styled by him an idolocracy.^ In addition, he recog- 
nized a group of "secondary" forms which he considered 
necessary to complete the Aristotelian classification, 
namely, free, half-free, and unfree states. Theocracies, he 
said, tend to become unfree states ; aristocracies ' ' gravitate ' ' 
toward the half-free class; while democracies naturally 
belong to the free type, although they may become des- 
potisms.^ Furthermore, he added confusion by attempt- 
ing to classify states as civilized monarchies, patriarchal 
kingships, feudal monarchies, military and judicial princi- 
palities, absolute, limited, and constitutional monarchies, 
compound states, mixed states, and various others. 
The So- Some writers have recognized the existence of a mixed 

state made up of a combination of monarchical, aristo- 



called 
Mixed 
State 



' Compare Burgess, "Political Science and Constitutional Law," vol. I, pp. '73-74. 
^"AUgemeine Staatslehre," bk. VI, ch. 4; see also his essay entitled "Die 
Staatsformen " in his " Psychologische .Studien iiber Staat und Kirche." 
^ " Allgemeine Staatslehre," ch. 5. 



OTHER CLASSIFICATIONS 135 

cratic, and democratic elements. Aristotle himself seems 
to have considered the ideal polity to be a "mixture" of 
oligarchy and democracy.* Rome was cited by both 
Cicero and Polybius as an example of the mixed type, being 
composed of monarchic, aristocratic, and democratic ele- 
ments, and Gicero considered the best state to be the mixed 
form.^ Blackstone and Rousseau are sometimes cited as 
recognizing the mixed form, but it is clear from an examina- 
tion of their classifications that they were thinking of forms 
of government rather than of forms of state. Bluntschli 
defined a mixed state as "one in which monarchy, aris- 
tocracy, or democracy is moderated or limited by other 
political factors," as, for example, a monarchy which is 
limited by an aristocratic senate or by the people acting 
through a primary or a representative body.^ But obvi- 
ously such a combination is nothing more than a form of 
government, not a form of state. Bluntschli indeed ad- 
mitted that such a "mixture does not create a new form 
of state, for the sovereignty is still in the monarch, the 
aristocracy, or the people." The truth is, there can be no 
such thing as a mixed state. The state is a unity; its 
attributes are incapable of combination and intermixture. 
A monarch and an aristocratic body cannot both be sover- 
eign at the same time, and hence the state cannot be a 
monarchy and an aristocracy at the same time any more 
than a number can be at once singular and plural.* 

' "Politics," bk. IV, ch.8; cf. Willoughby, "Political Theories of the Ancient 
World," p. 180. 

* " De Republica, " I, 23. 
3 Op. cit., bk. VI, ch. 2. 

* Great Britain is sometimes cited as a good example of a mixed state, but mani- 
festly it is not the state that is mixed. It has a government composed of monarchical, 
aristocratic, and democratic elements, but the state is a unity and the sovereignty is 
undivided. On "mixed governments" see De Parieu, " Principes de Politique," 
ch. 5; and De Tocqueville, "Democracy in America," ch. 15. De Parieu reviews 
the subject historically and points out the "mixed" elements in various govern- 
ments. 



136 FORMS OF STATE AND ASSOCIATIONS OF STATES 

V. SIMPLE AND COMPOSITE STATES; PERSONAL AND REAL 

UNIONS ^ 

Many writers, as has been said, classify states as simple 
and composite.^ A simple state is one which has a single 
supreme government and exerts a single will, whether it be 
that of an individual or an assembly. It may for conven- 
ience of administration be subdivided into provinces, de- 
partments, communes, counties, etc. ; or it may possess 
non-contiguous territories, such as colonies and dependen- 
cies; or it may even include territorial divisions that were 
formerly independent states, like Ireland and Scotland. 
But so long as the subdivisions are legally nothing but his- 
torical or administrative circumscriptions without an exten- 
sive local autonomy as of right, the state is simple in form. 
Such a Commonwealth is sometimes described as a unitary 
state (the Einheitsstaat of the Germans) because the gov- 
ernmental organization is a unit rather than dualistic or 
federal in character. The administrative districts into 
which such a state is divided possess neither the name, the 
traditions, nor the characteristics of states, and whatever 
powers of government they exercise or whatever rights 
of autonomy they possess are delegated to them by the 
central government, and may be modified or withdrawn 
at its pleasure. The empires and kingdoms of Europe 
(Germany excepted) with their vast outlying possessions, to 
which are delegated important powers of local government, 
are nothing but unitary states, because the local govern- 
mental organizations are the creations of one central power, 
which determines their competence and to which in the last 
analysis they are completely subject.' 

* The terms "simple" and "composite" are in strictness descriptive of forms of 
government rather than forms of state, but the above classification is observed and the 
subject is treated in this chapter rather than in the next, in deference to popular usage. 

^ Martens adds a third class, united states (eiats-unis) . "Traite de Droit inter- 
national," vol. I, p. 311. 

' Some winters, like Heffter (" Volkerrecht," sec. 20), consider Great Britain vsrith 



PERSONAL AND REAL UNIONS 137 

Where two or more states, wholly separate and distinct Personal 
in their external and internal relations, are associated to- '^*"" 
gether under the same reigning sovereign, we have what is 
called a personal union/ The only bond of connection is 
the crown. Each of the associated states is entirely inde- 
pendent of the other; each has its own constitution and 
laws, its own distinct political organization, and its own 
citizenship and local institutions. The acts of their 
common sovereign in relation to each of the member states 
have no application within the territories of the other nor 
any binding effect upon its citizens. Indeed the subjects 
or citizens of the one are foreigners to the other. Though 
physically the same person, the sovereign possesses two 
distinct legal personalities and may enjoy widely different 
powers and attributes in the different states composing the 
union. He may be an absolute ruler in one and a constitu- 
tional ruler in the other. In international as well as internal 
relations each constitutes a distinct and separate person- 
ality, so much so that one might make war upon the other 
without affecting the union, or declare war against a third 
power without involving the belligerency of its associate. 
The distinguishing characteristic of a personal union, says 

its great and largely autonomous self-governing colonies as a composite state rather 
than a simple state, but the weight of the opinion and reason are against such a 
view. On the nature of the unitary state see Gareis, " Allgemeine Staatslehre " in 
Marquardsen's " Handbuch," pp. 100-104; Meyer, " Deutsches Staatsrecht," pp. 
II ff . ; and Nys, " Le Droit international," vol. I, pp. 367-368. 

' Despagnet, " Cours de Droit int. pub.," pp. 88-S9; Nys, " Le Droit int.," vol. I, 
PP- 377^378; Rivier, "Principes du Droit des Gens," vol. I, pp. 93-97; Hail, 
"International Law," sec. 4; Moore, "Digest of International Law," vol. I, sec. 7; 
Oppenheim, "International Law," vol. I, sec. 86; Bonfils, "Droit international 
public," ed. by Fauchille, pp. 87-8S; Calvo, "Droit international," vol. I, sees. 
45-48; Pradier-Fodere, "Traite de Droit international public," vol. I, pp. 201-202; 
Kliiber, "Droit des Gens," sec. 27; Juraschek, "Personal- und Realunion"; Mar- 
tens, "Traite de Droit international," vol. I, sec. 58. Some writers classify the 
personal union as a form of composite state, but there is no justification for such a 
classification, since such a union constitutes no new state but represents only a 
condition in which two or more states employ a common agent for certain purposes. 
Martens classifies it under the head of united states (etats-unis), which is more 
defensible. Op. cit., sec. 58. 



138 FORMS OF STATE AND ASSOCIATIONS OF STATES 



Examples 
of 

Personal 
Unions 



Hall, is that states employ for the time being the same agent 
for a particular class of purposes; but they are in no way 
bound by or responsible for each other's acts. Such a con- 
dition may result from treaty stipulation or, as is more 
commonly the case, from the operation of identical suc- 
cession laws which fix the crown upon the same dynasty. 
In the latter case the union necessarily ceases with the 
extinction of the dynasty, each state then being free to 
choose a different sovereign. It may also happen that the 
reigning sovereign of one state is formally chosen by another 
state to rule over it, in which case the union ceases with the 
death of the common ruler unless it is renewed by the joint 
election of a successor. Likewise, if the ruling prince is 
overthrown by revolution in one state, and the succession 
thereby changed, the union is necessarily terminated. It 
may also be terminated where the law of succession is 
different, as, for example, where a woman should come to 
the throne in one of the states, but would be ineligible in 
the other. 

Examples of personal unions were the union between 
Spain and the old German Empire under Charles V, 1520- 
1556; between England and Hanover from 1714 to 1837, 
terminated by the accession of Victoria as Queen of Eng- 
land, the laws of succession in Hanover not permitting 
females to succeed; between Holland and Luxembourg, 
1815-1890; between Schleswig-Holstein and Denmark, 
1776-1863; and finally, the general act of the Berlin Con- 
ference of 1885, followed by a Belgian law of the same 
year, which declared that the relation between the king of 
the Belgians and the Congo state should be exclusively 
personal in character.^ 

' Rivier, op. cit., vol. I, pp. 94-95. This relation has been somewhat modified 
by recent acts (see Bonfils, op. cit., p. 88). The king of Prussia until 1848 was 
sovereign of the principality of Neufchatel, then a member of the Swiss Confedera- 
tion (see Pradier-Fodere, op. cit., vol. I, p. 202). Bonfils asserts that the connection 
between England and India since 1877, when Victoria was proclaimed Empress of 
India, has been that of a personal union. Wheaton adds Norway and Sweden (after 



PERSONAL AND REAL UNIONS 139 

The so-called composite state is one composed of two or The 
more states or of communities which have a wide autonomy state'"^*** 
as of right, and which often possess the name and always 
some of the characteristics of states. Pradier-Fodere de- 
scribes it as a union of a "certain number of states which 
have internally independent governments though not indi- 
vidually sovereign."^ It differs from the simple state in 
that it is itself constructed out of states, or at least out of 
communities which were once states and which are still 
organized like states and retain a limited international 
capacity. The degree of sovereignty or local autonomy, 
as the case may be, which the component members retain, 
as well as the character of the international person which 
they collectively constitute, depends upon the nature of 
the act by which the union has been created. Composite 
states are usually classified as real unions, confederations, 
and federal unions and, some writers add, states maintain- 
ing protectorates and suzerainties. 

A "real union" results from the joining together of two Real 
or more states, not merely through the employment of a ^^^"^ 
common ruler, but through the creation of common consti- 
tutional or international arrangements for the administra- 
tion of certain common affairs. Such a union occurs, says 
Hall, when states are indissolubly combined under the 
same monarch, their identity being merged in that of a 
common state for external purposes, though each may 
retain distinct internal laws and institutions.^ It differs 

1814) to the list of personal unions ("Elements of International Law," ed. by 
Lawrence, p. 72), but obviously he did not understand the true relation between 
the two. 

' " Traite de Droit international public," vol. I, p. 207. Compare also Bonfils, 
"Droit international public " (ed. by Fauchille), pp. 86-87. 

^ "International Law," p. 28. Brie defines a "real union" as a " Verein von 
Staaten mit rechtlicher Gemeinsamkeit der Person des Staates oherhaupts imd zwar 
des monarchischen Staats ilberhaupts." "Theorie der Staatenverbindungen," p. 69. 
See also Martens, op. ciL, vol. I, p. 323; Moore, "Digest of International Law," 
vol. I, sec. 9; Rivier, op. cit., vol. I, pp. 97 ff. ; Le Fur und Posener, "Bundesstaat 
und Staatenbund," sec. 73; Pradier-Fod^re, op. cit., vol. I, pp. 202-204; Calvo, 



Hungary 



140 FORMS OF STATE AND ASSOCIATIONS OF STATES 

from the personal union in that the associated states or 
component members are organically united by constitu- 
tional bonds and have common organs of government and 
a single international personality for most purposes/ It 
also possesses greater elements of permanence, its existence 
being unaffected by the death of the common sovereign or 
the extinction of the reigning dynasty.^ 
Examples The most notable example of a real union to-day is that 
Un?o*ns— between Austria and Hungary. The union between the 
Austria- kingdoms of Norway and Sweden from 18 15 to 1905 was 
also an example. The former rests upon constitutional 
compact, the act of union being embodied in a pair of 
identical statutes adopted by the parliaments of the two 
states in 1867. They not only have the same ruling sover- 
eign (who, it may be observed, enjoys different titles and 
dignities in the two states and is crowned separately in 
each), but a common legislative body for limited purposes, 
a common army organized on the same basis and com- 
manded in a common language, a common diplomatic ser- 
vice, a common court of accounts, a common tariff and 
trade union, and common ministries of war, finance, and 
foreign affairs. The expense of the joint administration is 
borne by the two states according to a proportion agreed 
upon by them. In international intercourse the union 

sees. 45-48; Schuize, "Lehrbuch des deutschen Staatsrechts," vol. I, pp. 43, 44; 
Bonfils, op. cit., pp. 88-90; Gareis, "Allgemeine Staatslehre," in Marquardsen's 
"Handbuch," vol. I, pp. 105-106; Despagnet, " Cours de Droit int. pub.," p. 89; 
Nys, "Le Droit international," vol. I, pp. 368-370; and Carnazza-Amari, "Traits 
de Droit int. pub.," vol. I, pp. 269-270. 

* Juraschek, "Personal- und Realunion," p. 95. 

' Jellinek considers the " real union " to be a special form of confederation {Staaten- 
bund) which results from the legal union of two or more independent states for com- 
mon protection under one and the same physical personality, who acts as the common 
bearer of the power of the component members, though each retains its sovereignty. 
" Die Lehre von den Staatenverbindungen," p. 215. A. B. Hart (" Federal Govern- 
ment," pp. 14-15) groups "personal" and "real" unions together with the so-called 
"incorporate" union under the head of "conjunctive" unions, since the dis- 
tinguishing characteristic of all such formations is that they employ conjointly the 
same sovereign. 



PERSONAL AND REAL UNIONS I41 

represents a single personality, though for most purposes of 
internal administration each state retains its own sover- 
eignty and independence.^ 

The terms of the agreement by which Norway and Norway 
Sweden were joined were embodied in a treaty of August 6, Sweden 
18 1 5. According to the agreement Norway recognized 
the king of Sweden as its sovereign and representative in 
international relations, though the constitution of Norway 
expressly declared that Norway should remain a "free, 
independent, and indivisible empire." The treaty of union 
regulated the procedure to be followed in both kingdoms 
for the election of the successor of their common sovereign. 
The two states maintained a common diplomatic and 
consular service, though, unlike the Austro-Hungarian 
arrangement, their foreign relations were not conducted 
through the agency of a common Norwegian-Swedish 
ministry, but through the Swedish foreign minister, who 
managed the external affairs of both states.^ The two 

' Cf. Lowell, "Government and Parties on the Continent of Europe," vol. II, 
ch. 9; Le Fur und Posener, "Bundesstaat und Staatenbund," sec. 73; Kallesburg 
("Der monarchische Bundesstaat Osterreich-Ungarn," 18S0) considers the Austro- 
Hungarian union to be a federal state; Bidermann ("Die rechtliche Natur der 
Osterreichische Ungarische Monarchic," 1877) characterizes it as a personal 
union. Some of the Hungarian publicists consider the relation little more than per- 
sonal. Compare an article by Count Albert Apponyi in the "North American Re- 
view " for May, 1905. The relation between Hungary and Croatia is treated by 
some writers as that of a personal union (e.g., Ulbrich, "Die rechtHche Natur der 
Osterreichischungarischen Monarchic," 1S99, and Brie, "Theorie der Staatenver- 
bindungen," p. 70); others, Hke Bidermann, consider it a federal union. Le Fur 
and Posener ("Bundesstaat und Staatenbund," p. 303) take the latter view. See 
also Rivier, op. cit., vol. I, p. 98; and Jellinek, "Staatenverbindungen," pp. 234 ff. 

' While the two states had a common foreign policy, each retained its separateness 
and individuality in the family of nations and each sometimes concluded separate 
though identical treaties with foreign states. Thus the United States had identical 
extradition conventions, bearing dif?erent dates, with each state, though they were 
entered into with the king of Sweden and Norway. The obligation to deliver up 
fugitives from justice in each case rested, not on the common government, but upon 
the particular government concerned. "Treaties of the United States now in 
Force," 1899, pp. 486-471 and 621-625; Moore, "Digest," sec. 9. On the legal 
nature of the union between Norway and Sweden see Jellinek, " Staatenverbin- 
dungen," pp. 223-234. 



142 FORMS OF STATE AND ASSOCIATIONS OF STATES 

states had different commercial and naval flags and distinct 
systems of internal administration; and each had its own 
army under the command and direction of the joint king. 
Unlike the Austro-Hungarian union, there was nothing in the 
nature of a common legislative assembly, nor were there 
any joint ministries of state. Matters of common interest, 
which could not be regulated by the joint king, were dealt 
with by the concurrent action of the parliaments of the 
two kingdoms. The joint arrangements were indeed so 
few and unimportant that some writers have treated the 
relation as simply that of a personal union, ^ though this is 
incorrect, since the perpetuity of the union did not depend 
upon any dynasty or law of succession. The increasing 
dissatisfaction of Norway and its desire for a real joint* 
ministry of foreign affairs and a separate consular system 
led to the disruption of the union in 1905 by the secession 
of Norway and the conclusion between the two states of a 
treaty of permanent separation. 

VI. CONFEDERATIONS 

"A confederation," says Hall, "is a union strictly of inde- 
pendent states which consent to forego permanently a part 
of their liberty of action for certain specific objects, and they 
are not so combined under a common government that the 
latter appears to their exclusion as the international en- 
tity." ^ It is a permanent association of states for the joint 

* Notably Wheaton, Funck-Brentano and Sorel, and Phillimore. Others, like 
Sir Travers Twiss, regard it as a federal pact. 

^"International Law," p. 28. Compare also Pradier-Fodere, who conceives 
a confederation to be "an association of sovereign and independent states which do 
not recognize a superior and common authority, each state retaining its own sov- 
ereignty, the right to govern itself according to its own laws, there being no common 
executive power with a right to impose its decrees upon the citizens of the member 
states or to come into direct relations with them." "Traite de Droit int. pub.," 
vol. I, p. 204. Jellinek defines a Confederation as a permanent political league 
(Bundniss) having a permanent central organ whose purpose is at least the common 
defense. "Staatenverbindungen," p. 172. Brie describes it as "e/w aus Staaten 



CONFEDERATIONS 143 

exercise of their rights of sovereignty for the common 
advantage. It differs from a mere alliance in having a 
fixed central organ for ascertaining and giving effect to the 
wills of the component states,^ in the greater variety of its 
objects, and in the intent of perpetuity. But, says Austin, 
a system of confederated states and a number of independ 
ent states connected by an ordinary alliance cannot be dis- 
tinguished precisely through general or abstract expression. 
The former is intended to be permanent, the latter tem- 
porary; while the ends or purposes embraced by the com- 
pact are commonly more numerous and more complicated 
than in the case of the temporary alliance.^ 

Though popularly treated as a form of state, a confed- a Confed- 
eration is in fact no state, but a league or a band of states g^Le^^e 
{Staatenbund) rather than a "banded state" (Bundes- of states 
staat) .' The component members of a confederation retain 
their internal sovereignty, dignity, and political organiza- 
tions and, to a greater or less extent, their external sover- 
eignty. They are therefore real states, not mere adminis- 
trative circumscriptions with a limited local autonomy, and 

zusammengesetztes foderatives Gemeinwesen." "Theorieder Staatenverbindungen," 
pp. 83-95. For further literature on confederations see Rivier, vol. I, sec. 6; Gareis, 
in Marquardsen's " Handbuch," vol. I, pp. 114-115 ; Jellinek, "Staatenverbin- 
dungen," pp. 172-194; Brie, "Staatenverbindungen," pp. 83-95; Bornhak, " AUge- 
meine Staatslehre," pp. 225-236; Westerkamp, "Staatenbund und Bundesstaat "; 
Freeman, "History of Federal Government," chs. i and 2; Hart, "Introduction 
to Federal Government," chs. 1-4; Moore, "Digest of International Law," sec. 10; 
Oppenheim, "International Law," vol. I, pp. 128-129; Wheaton, "Elements of 
International Law," ch. i; Le Fur und Posener, "Bundesstaat und Staatenbund"; 
Bonfils, "Droit international public," pp. 90-91; Borel, "Etude sur la souverainete 
et I'Etat f^deratif "; Calvo, op. cit., vol. I, pp. 179-196; Meyer, " Deutsches Staats- 
recht," sec. 13; Treitschke, "Politik," vol. II, sec. 21; Nys, op. cit., pp. 371-377; 
Despagnet, op. cit., pp. 135-136; Carnazza-Amari, op. cit., vol. I, pp. 276-287; 
"The Federalist," No. 39. 

' Wheaton, however, maintains that a confederation differs in no essential particu- 
lar from an ordinary alliance. " Elements," p. 75 (ed. by Lawrence). 

* "Province of Jurisprudence Determined," ed. of 1861, pp. 223-224. 

' " Der Staatenbund," says Brie, ^'ist demnach ein Geimenwesen; aher er ist kein 
Staatswesen." "Staatenverbindungen," p. 88. Cf. also Duguit, "Droit constitu- 
tionnel," p. 141; Jellinek, "Staatenverbindungen," p. 178. 



144 FORMS OF STATE AND ASSOCIATIONS OF STATES 

their relations to one another are of an international char- 
acter.* There is no single sovereignty, but as many sover- 
eignties as there are states composing the confederation. 
Confederations rest on compact or articles of agreement 
rather than upon constitutional law. They have only a 
limited juristic personality and then mainly in international 
relations. They have as such no citizens or subjects to 
whom their commands can be directly addressed, or from 
whom obligations or duties may be required. Being 
composed of sovereign states, their governmental organiza- 
tions rarely operate directly upon individuals, but reach 
them only through the medium of the state organizations.^ 
The will of the confederation is but the sum total of the 
wills of the component states,^ and is expressed, not in 
statutes framed by a real legislative body, but in ordinances 
or resolutions framed by a quasi-diplomatic body consisting 
of plenipotentiaries representing the governments of the 
several states composing the confederation.^ These pleni- 
potentiaries usually vote by states and according to the 
instructions of the governments which they represent. 
The Or- Their resolutions have no binding effect upon individuals 
0^3 Con°" ^^ such, but are addressed, as already said, to the organiza- 
fedaration tious of the compoucut statcs, and are usually inoperative 
until adopted by their governments and given the force of 
law within their jurisdictions. The congress or diet of a 
confederation has no power to enforce its resolutions except 
by "federal execution," that is, by the use of force against 
a recalcitrant member. Most of the confederations in the 
past have in fact had no executive or judicial machin- 
ery, and have therefore been compelled to rely upon the 
good faith of the member states to enforce their commands. 

* This is sometimes expressly declared, as, for example, in the articles of union 
of the American Confederation, 1 781-1789. 

* Cf. Rivier, op. cit., vol. I, p. 102 ; Pradier-Fodere, op. cit., vol. I, p. 207. 
' Jellinek, " Staatenverbindungen," p. 176. 

* Cf. Brie, "Theorie der Staatenverbindungen," p. 91. 



CONFEDERATIONS 1 45 

Usually the component members are free to withdraw at 
will and thus dissolve the confederation, and the confederate 
authorities have no constitutional power to restrain a dis- 
affected member and compel it to remain in the confedera- 
tion against its will.* 

History abounds in examples of confederations, for the Example 
tendency of neighboring states to associate themselves to- fg^g°°_' 
gether for purposes of defense and for the furthering of their tions 
common interests has proved to be almost as strong as the 
social impulse among individuals. Among the ancient 
Greeks, confederations were numerous, the more important 
being the Boeotian, Delian, Lykian, Achaean, and yEtolian 
leagues. In some cases the component members were 
federated together much more closely than in others. The 
constitution of the Achaean League, for instance, provided 
for a common executive magistracy, a legislative body, and 
even a rudimentary judiciary.^ Its organization was, in 
fact, so highly developed that it is considered by some 
writers to have been essentially a federal union rather than 
a confederation.' Leagues and confederations among the 
early Italian cities were not uncommon, though they 
never attained the perfection and degree of importance 

* Jellinek recognizes two types of confederation : first, that in which the acts of 
the confederate government do not have an immediate binding effect upon the indi- 
viduals composing the several states ; and second, that in which the diet of the con- 
federation is not merely a congress of plenipotentiaries, but a real legislative body, 
whose acts operate directly and immediately upon individuals rather than upon the 
states composing the confederation. The latter form approaches closely the so- 
called federal state. The only example which Jellinek gives of the second type is 
the Confederacy of the Southern States of North America, 1861-1865. But an ex- 
amination of the constitution of the Southern Confederacy will show that it was a 
confederation only in name, and differed in no essential particulars from other 
states having the federal system of government. " Staatenverbindungen," pp. 
189-195. 

* Hart, " Introduction to Federal Government," p. 32. 

'By Freeman, for example, in his "History of Federal Government" (1863). 
For other historical accounts of early federations see A. B. Hart, "Introduction to 
Federal Government," and Le Fur und Posener, "Bundesstaat und Staatenbund," 
sees. 4-14. 

POL, SCI. — 10 



146 FORMS OF STATP: AND ASSOCIATIONS OF STATES 

of those of Greece. During the medieval period several 
important federations were formed, among which may be 
mentioned the Rhenish Confederation (i 254-1 350), which 
eventually embraced some seventy members. Then came 
the Hanseatic League (1367-1669), which was originally 
organized for the promotion and protection of trade, but 
which gradually developed into a great political power that 
waged war and negotiated treaties, and eventually came to 
exercise an important influence on the international affairs 
of Europe. It had a sort of central legislative organ and a 
crude judicial machinery for the adjudication of disputes 
among the members.^ The Holy Roman Empire (1526- 
1806), the most extensive federation formed before the 
nineteenth century, eventually embraced several hundred 
states of varying types and importance — free cities, eccle- 
siastical territories, and hereditary monarchies. It main- 
tained a common Diet {Reichstag) and several imperial 
courts.^ Other examples were : the Swiss confederations of 
1291-1798 and 1803-1848, which grew out of the union of 
three small cantons, but which in the course of time came 
to embrace all of them;' and the United Netherlands, 
The Con- 1576-1746, composed of the Dutch provinces. The two 
of t^he ^^° best-known modern examples of confederations were the 
United United States of America from 1781 to 1789 and the Ger- 
1781-' man Confederation, 1815-1866. The former turned out to 
^^^' be little more than what the articles of union described it 

to be, namely, a "firm league of friendship" among the 
states composing it. It was expressly declared in the 
articles of agreement that each member of the confedera- 
tion retained its sovereignty, freedom, and independence 
and every power, jurisdiction, and right not expressly dele- 
gated to the confederation.* Its avowed object was to 

* Hart, op. cit., pp. 40-41. 

' Bryce, "Holy Roman Empire," especially pp. 340-365; Schulze, "Deutsches 
Staatsrecht," sees. 26-34. ' Calvo, "Droit international," vol. I, sec. 55. 

* Articles of Confederation, Art. II. 



CONFEDERATIONS 147 

provide common protection against attack upon any or 
all of the states.^ The collective will of the confedera- 
tion was ascertained and expressed through a congress 
of delegates constituted without any reference to the 
populations of the component states. No common ad- 
ministrative or judicial organs were created, the enforce- 
ment of the resolutions of the congress being left to the 
individual states. The powers conferred upon the general 
congress were so meager and the means of enforcing its 
will so inadequate that it perished, to use the language of 
De Tocqueville, through the excessive weakness of its 
government.^ 

The German Confederation embraced at first thirty- The 
eight states of varying rank and importance — kingdoms, coirfed- 
grand duchies, principalities, and free cities. It was de- elation, 
clared to be a "perpetual league" for the purpose of pre- 1866 
serving "the external and internal security of Germany and 
the independence and inviolability of the confederate 
states." The collective will of the members was expressed 
through a Diet of plenipotentiaries which sat at Frankfort 
under the presidency of Austria. They were appointed 
by the governments of the states which they represented, 
and voted according to instructions. The Diet had the 
power to send and receive ambassadors, to declare war and 
conclude peace in the name of the confederation, and, under 
certain conditions, to intervene in the affairs of the indi- 
vidual states. Each state, however, retained the right of 
legation and could enter into foreign alliances, provided 
they were not directed against the security of the confed- 
eration or of any one of the component states. In case war 
was declared by the confederation, no state could conclude 
peace without the consent of the confederation. No 
member of the confederation could make war against 
another member, and in case of differences between them the 

1 Ibid., Art. III. 

^ "Democracy in America" (English translation by Reeves), vol. I, p. 168. 



148 FORMS OF STATE AND ASSOCIATIONS OF STATES 

disputes were to be submitted to the decision of the Diet. 
There was an imperial court which had a Hmited jurisdic- 
tion, but there was no common administrative machinery, 
the enforcement of the resolutions of the Diet being left 
mainly to the individual states. 



Examples 
of 

Federal 
Unions 



VII. FEDERAL UNIONS 

Where several states unite themselves together under a 
common sovereignty and establish a common central 
government for the administration of certain affairs of 
general concern, or where a number of provinces or depend- 
encies are similarly united by their common superior, the 
component members still retaining a large local autonomy, 
but surrendering the management of the whole or nearly 
the whole of their external affairs to the central govern- 
ment, we have a federal union, or, as is often said, a fed- 
eral state. ^ The historian Freeman, writing in 1863, said 
that the four most famous federal commonwealths of his- 
tory were : the Achaean League in the later days of ancient 
Greece; the Confederation of Swiss cantons from 1291 to 
the present; the United Provinces of the Netherlands, 
1579-1795; and the United States of America, 1789-1863, 
which Freeman predicted was at that time nearing its end. 
The first and last mentioned, he said, represented the 

* For discussions of the federal state, so-called, see Le Fur und Posener, " Bundes- 
staat und Staatenbund," especially pp. 186-317; Bornhak, " Allgemeine Staats- 
lehre," pp. 236-254; Brie, "Theorie der Staatcnverbindungen," pp. 95 et seq., 
also his " Der Bundesstaat" ; Gareis, " Allgemeine Staatslehre," sec. 41 ; Carnazza- 
Amari, op. cit., vol. I, pp. 272-276 ; Jellinek, " Staatcnverbindungen," pp. 253-314 ; 
Rivier, op. cit., vol. I, pp. 104-108 ; Bonfils, " Droit international public," pp. 91-93 ; 
Despagnet, op. cit., pp. 133-135; Martens, "Traite de Droit international," 
vol. I, pp. 326-330; Nys, op. cit., vol. I, pp. 372-377; Pradier-Fod^re, "Traits," 
etc., vol. I, pp. 207-214; Westerkamp, "Staatenbund und Bundesstaat"; Free- 
man, "History of Federal Government"; Hart, "Introduction to Federal Govern- 
ment"; Moore, "Digest of International Law," vol. I, sec. 11 ; Meyer, "Deutsches 
Staatsrecht," sec. 14; Dicey, "Law of the Constitution," ch. 4; Willoughby, 
"Nature of the State," ch. 10; Treitschke, "Politik," vol. II, sec. 21; Brater und 
Bluntschli, " Staatsworterbuch," vol. II, pp. 284 ff. 



FEDERAL UNIONS 149 

"most perfect development of the federal principle which 
the world has ever seen," though there were several ancient 
confederations "whose constitutions must have realized the 
federal idea almost as perfectly as the more famous league 
of Achsea." ^ 

Since the publication of Freeman's "History of Federal 
Government" a goodly number of federal unions have been 
established in various parts of the world. The most 
important of these are: the Dominion of Canada (1867); 
the German Empire (1871) ; the reorganized Swiss republic 
(1874); Brazil (1891); the Commonwealth of Australia 
(1900); and Venezuela (1903).^ 

Strictly speaking, however, there can be no such thing No Such 
as a federal state. What is popularly called a federal state a^peferai 
is in fact a democratic or aristocratic state having a federal state 
system of government, that is, a dual form of government 
under a common sovereignty.^ In this chapter, therefore, 
our discussion will be restricted mainly to a description of 
the legal nature of the association created by a union of 
states under a federal organization, and the discussion of 
its governmental system will be reserved for the chapter 
on "Forms of Government." 

The historian Freeman, who employs the terms "federal Marks 
government" and "federal state" without discrimina- pg^gj-ai 
tion, says, "The name federal government may be applied Union 
to any union of component members where the degree of 
union between the members surpasses that of mere alli- 
ance, however intimate, and where the degree of indepen- 
dence possessed by each member surpasses anything which 
can fairly come under the head of mere municipal free- 
dom." * Again, he observes that a "federal commonwealth 

' "History of Federal Government," p. 7. 

^ The Mexican federal system was established in 1857, and that of Argentine in 
i860. The states of Bolivia, Ecuador, Colombia, Chile, and Peru still remain 
ynitary centralized republics. 

' Compare Burgess, " Political Science and Constitutional Law," vol. I, p. 79. 

* "History of Federal Government," pp. 2-3. 



150 FORMS OF STATE AND ASSOCIATIONS OF STATES 

in its perfect form is one which forms a single state in its 

relations to other nations, but which consists of many states 

with regard to its internal government."^ 

Distinc- Ordinarily the distinguishing marks of a federal union are : 

tween^a hrst, the existence of a number of political communities 

Federal possessing of right their own constitutions and forms of 

Union and ^ f 1 • • 1 • 

a Con- government, and bemg supreme withm a certam more or less 
federation extensive Sphere reserved by their own action ; and, second, 
a common constitution and government, for the direct ad- 
ministration of certain general concerns. Unlike a confed- 
eration, a federal union is not a mere league of independent 
states associated together for purposes mainly of common 
defense, but it is a union resulting from the merger of a 
number of political communities for the regulation of 
various matters common to all the component members. 
It is a sort of composite state, a new creation of consti- 
tutional law, not a band of states connected together by 
international agreement. The act by which a federal 
union is established is not a mere compact, but a constitu- 
tion. In its external relations it resembles a "real union," 
while internally it bears some resemblance to a confedera- 
tion. On its international side, observes Hall, it consists 
of a central government to which the conduct of all external 
relations is confided and in the absence of any right on the 

' "History of Federal Government," p. Qi- Compare the definition of Jellinek, 
"Staatenverbindungen, " p. 278; also the definition of Le Fur und Posener 
{op. cit., p. 15): " /« Bundesstaaten haben die Einzelstaaten einen verfassungs- 
massig bestimmtcn Anteil an der Bildung des hoclisten Willens des Staates. Im 
Bundesstaal ruht die Sonverdnitdl nicht bei einem Gliederstaate, sondern bei der 
Zentralgewalt, welche von den Gliederstaaten verschieden ist." Compare also 
Montesquieu's definition of a "confederate republic" : "This form of government 
is a convention by which several petty states agree to become members of a larger 
one, which they intend to establish. It is a kind of assemblage of societies, that 
constitute a new one, capable of increasing by means of further associations till 
they arrive at such a degree of power as to be able to provide for the security of a 
whole body." "Esprit des Lois" (Eng. trans, by Pritchard), vol. I, pp. 136-137. 
See also Meyer, " Deutsches Staatsrecht," p. 43 ; and Laband, " Staatsrecht des 
deutschen Reiches," vol. I, sec. 7. 



FEDERAL UNIONS 151 

part of the states to separate themselves from it.* It 
differs from a confederation in the character and degree of 
the relationship subsisting between the members compos- 
ing the union and in the possession by the former of a 
central organization endowed not only with practically 
exclusive powers in relation to foreign affairs, but also with 
important powers of government as regards internal affairs 
of common concern. In a federal union the component 
parts are subject to a common sovereign, and collectively 
they form a single united state. In a confederation the 
parts have no common sovereign, and they do not consti- 
tute a single political society, but each is itself a sover- 
eignty. In the federal system there is but one real state, 
one central government and a number of local govern- 
ments; in short, the state is coextensive in organization 
with the organization of the central government. In the 
confederate system, on the contrary, there are as many 
states as there are component members. 

Some writers, like Freeman, De Tocqueville, John Stuart Distinc- 
Mill, Wheaton, and the authors of "The Federalist," distin- Jj^e^'enPer- 
guish between perfect and imperfect federal unions. The f^^t ani 
difference is one mainly of degree. The former is one which Federal 
contains no elements of confederatism. It is one in which ^°*°^^ 
the central government is fully supreme in all external 
affairs and in certain specified internal affairs of general 
concern; which acts directly and immediately upon all 
individuals within the federation; and which possesses 
the power and means of enforcing its own declared will. 
This is what the German writer Brie calls the "ideal fed- 
eral state." ^ An imperfect federal union is one in which 
remnants of confederatism survive, one, in short, which is 
organized more like a confederation than a unitary state. 

* "International Law," 3d ed., p. 26. See also Jellinek, who remarks that the 
lack of power on the part of the component members of a federal state to secede there- 
from follows from the juristic nature of the union. " Staatenverbindungen," p. 298. 

'"Der Bundesstaat," p. 140. 



152 FORMS OF STATE AND ASSOCIATIONS OF STATES 

The component states possess a limited power in the man- 
agement of foreign affairs; the acts of the central govern- 
ment are enforced by the individual state governments and 
"its powers consist simply in issuing requisitions to the state 
governments when, within the proper limits of the federal 
authority, it is the duty of these governments to carry it 
out." ^ The German Empire is a good example of what has 
been called an imperfect federal union. 

The truth is, most federal unions belong to the imperfect 
type; that is, they represent a mixture of federalism and 
confederatism. Thus, in the organization of the German 
Empire the structure of the Reichstag and the judiciary is 
federal in character, while the Bundesrath is based on the 
confederate principle. The states composing the Empire 
retain a limited power of legation and of military adminis- 
tration, while the execution of the laws of the Empire de- 
volves largely upon the local governments. Certain of the 
states, moreover, are endowed with important special 
privileges of which they cannot be deprived without their 
own consent. These and other features give it a confed- 
erate character in a more marked degree than is found in 
any other existing federal system. The republic of the 
United States possesses also, though to a less extent, the qual- 
ities of both a federal union and a confederacy. This was first 
pointed out by Madison, who showed that the constitution in 
its method of adoption, ratification, and amendment, as well 
as in the organization of the Senate, was confederate in 
principle, while as regards the sources of the powers of the 
government, the organization of the army, and the execu- 
tion of the laws it was federal in character.^ 



' Freeman, "History of Federal Government," p. 11. 

' " The Federalist," No. 39, where Madison distinguished between what he called 
the "federal" and "national" elements in the origin, structure, and operation of the 
government of the United States. See also Woodburn, "The American Republic," 
pp. 65-70; Brie, "Der Bundesstaat," pp. 105 £f.; and Jellinek, " Staatenverbin- 
dungen," p. 300. 



FEDERAL UNIONS 153 

In its normal form the government of a federal union, as organic 
has been said, acts upon individuals rather than upon the ^J'*''*'^*" 
component state organizations; its will is exerted immedi- Federal 
ately and directly upon the citizens who compose it, and does 
not reach them simply through the medium of the local gov- 
ernments. Unlike the confederation, there is a general as 
v/ell as a local citizenship, and all persons within the juris- 
diction of the central government owe it direct and imme- 
diate allegiance. If war breaks out among the component 
states, it is civil war, not international war. The com- 
ponent parts of a federal union may themselves be mon- 
archies, or republics, or both; or they may be mere prov- 
inces or colonial dependencies, possessing a wide autonomy. 
Thus, the German federal empire is constructed out of 
kingdoms, grand duchies, principalities, and free cities. 
Switzerland is a federation of cantons, some of which have 
governments organized on the representative principle, others 
being pure democracies. The federal union of the United 
States is composed partly of republics called " states," and 
partly of dependencies called "territories." All the compo- 
nent members (except the territories) are on a footing of 
equality, none of them enjoying special privileges such as are 
common in the German Empire. In Canada and some of 
the Latin-American federations the component parts are 
simply provinces with more autonomy than belongs to 
provinces of unitary states. 

The communities of which federal unions are composed Compo- 
are not states in the strict sense of the term, though in Members 
most federal systems popular usage designates them as such. °^ Federal 

T • 1 1 . 1 . . Unions 

It is true, however, that in most cases these communities are not 
were originally sovereign and independent states, and when g^^g*^^*^ 
they became federated they naturally retained the name, 
a good deal of the dignity, the historical traditions, and even 
some of the powers of sovereign states. But, in reality, 
by the act of federation they lost their sovereignty and with 
it that quality which most distinguished them as states. 



154 FORMS OF STATE AND ASSOCIATIONS OF STATES 



Contrary 
View 



Sover- 
eignty, 
not Auton- 
omy, is 
the Test of 
State 
Existence 



By merging their separate existences into a new and larger 
personality they became in strict law mere political units, 
non-sovereign communities, yet withal retaining a degree 
of local autonomy and of political importance which is not 
enjoyed by the administrative subdivisions of a unitary 
state. Unlike the latter they retain, as of right, their own 
constitutions, their own political arrangements, and the 
right to participate in the collective will. 

While the view here expressed is that the component parts 
of a federal union are not in reality states, many writers, 
particularly among the Germans, hold the contrary opin- 
ion. They maintain that since the members of a federal 
union possess all the attributes and characteristics of real 
states except that of full sovereignty, they may properly 
be treated as states, rather than as mere administrative cir- 
cumscriptions. Among the German writers who take this 
view are Laband, Jellinek, and Seydel. Laband, in explain- 
ing the juridical nature of the German federal empire, 
attributes to the component members the character of real 
states, while at the same time denying to them the posses- 
sion of sovereignty.^ His doctrine is based on the view 
that the distinguishing characteristic of the state is not 
sovereignty, but rather the power to command and enforce 
obedience, and since the individual members of a federal 
union possess such power, they may be rightfully designated 
as states. But it may well be observed that if the power 
to lay down commands and compel obedience be a correct 
juristic test of the state character, it is difficult to avoid the 
conclusion that a province or a municipality has an equal 
claim to be considered a state. The possession of mere 
local autonomy or independence of action in certain 
matters — mere power in a local organization to express a 
will and enforce its commands — is not a mark of statehood. 
If a non-sovereign community may be rightfully treated as 

• "Staatsrecht des deutschen Reiches," vol. T, pp. 75 ff. ; see also Jellinek, "Lehre 
von den Staatenverbindungen," pp. 298, 307. 



FEDERAL UNIONS 155 

a State, the distinction between states and mere adminis- 
trative districts disappears or becomes very indistinct 
indeed. If, iiowever, by the power to command and com- 
pel obedience is meant only original, underived, and inde- 
pendent power, then that is undoubtedly sovereignty — a 
power which the component parts of federal unions certainly 
do not possess/ The individual members of a federal 
commonwealth have no power to determine their status in 
the union of which they are a part, or to alter their relations 
with one another or with the central organization, or to 
determine the extent of their own jurisdiction or sphere of 
action. That power in the last analysis lies outside their 
jurisdiction and, wherever it resides, there is the state. 
In international relations they are non-entities; in internal 
affairs they are, legally speaking, nothing but widely autono- 
mous, largely self-governing parts of a state. Whatever the 
historical process by which federal unions are created, 
whether, as Lincoln asserted of the American federal republic, 
they are older than the component parts or the reverse, the 
parts are the creations of the will of the people as a whole, 
and they continue to exist subject to that will. If they 
existed prior to the establishment of the union, they were 
re-created by the act through which it came into existence 
and were reinvested by it with the powers which they sub- 
sequently possessed.^ 

' Compare Burgess in the "Political Science Quarterly," vol. Ill, p. 128; also 
Willoughby, "The Nature of the State," pp. 245 ff . ; and Duguit, "Droit constitu- 
tionnel," p. 142. 

^ Compare Le Fur, "L'fitat federal," p. 680; Duguit, op. cit., p. 142; Borel, 
"fitude sur le Souverainete," p. 103. Woodrow Wilson, while admitting that the 
members of federal unions have lost their power of self-determination with respect to 
their law as a whole, and that their sphere is limited by the powers of the state super- 
ordinated to them, asserts, nevertheless, that they are states because " their powers are 
original and inherent, not derivative ; because their political rights are not also legal 
duties ; and because they can apply to their commands the full imperative sanctions of 
law." " Old Master and Other Essays," pp. 93-94. But, as we have endeavored to 
show above, their powers are not original and underived. What would Mr. Wilson 
say of the powers of the component members of the Canadian federation, where the 
powers of the provinces are delegated rather than reserved ? 



IS6 FORMS OF STATE AND ASSOCIATIONS OF STATES 



Theory 
that the 
Compo- 
nent Mem- 
bers of a 
Federal 
Union are 
partly 
Sovereign 



Procedure 
by which 
Federal 
Unions 
are organ- 
ized 



Many writers have attempted to explain the relation 
between the federal union and its parts by attributing a 
portion of sovereignty to each. This theory assumes that 
sovereignty is capable of being divided and distributed at 
will. According to this view the state formed by the union 
of the parts is sovereign in respect to those matters which 
by the constitution are committed to its care, while the 
component members are equally sovereign with respect to 
those matters intrusted to them. In other words, each is 
sovereign within its constitutional sphere. This view has 
been ably defended by such scholars as Waitz, S. Meyer, 
Schulze, Bluntschli, Gerber, Riittiman, Von Mohl, and 
Treitschke in Germany; by Freeman and Oppenheim in 
England; by De Tocqueville and Rivier in France; and by 
Kent, Story, Cooley, and others in America. It is also 
the view that has been uniformly maintained by the United 
States Supreme Court. ^ Since a discussion of this ques- 
tion would involve a consideration of the theory of divided 
sovereignty, it will be passed over until that subject is 
reached in the course of this work. 

Federal states, so called, have usually been created in 
one of two ways : first, they have been formed by a volun- 
tary coalescing of a number of sovereign and independent 
states; or, the federal system has been imposed from with- 
out, as where a unitary state has established federalism 
among the provinces of which it is composed. An example 
of the latter method was furnished by the creation of a 
federal republic out of the provinces of the Empire of Brazil 
in 1889. A somewhat similar procedure was that by which 
the colonial provinces of British North America and the 
Australian Colonies were federated in 1867 and 1900 re- 



' See, for example, the decision of the court in the License Cases (5 How.), where the 
general government and those of the states were spoken of as " separate and distinct 
sovereignties, each acting separately and independently of the other within their 
respective spheres." Compare also Lowell, "Essays on American Government," 
chapter on " Sovereignty." 



FEDERAL UNIONS 157 

spectively. In both cases the federation was constructed, 
not out of already existing independent states, as was the 
case in the United States and Germany, but out of a group 
of colonial dependencies/ 

Two conditions, observes Dicey, must be present in the Conditions 
formation of a federal union: first, there must be a body trpedera- 
of communities (states, cantons, colonies, provinces) ^^^'^ 
connected by locality, history, race, or the like, capable of 
bearing, in the eyes of their inhabitants, an impress of 
common nationality; second, there must exist a "very 
peculiar sentiment" among the inhabitants; that is, they 
must desire union without unity, must be able to adjust 
the conflicting ideas of union and separation and to recon- 
cile the advantages of national union with the disadvan- 
tages of a division of a power and diversity of legislation. 
There must be a wish to form for many purposes a single 
state without surrendering the individual existences of 
each. A "federal state" indeed is nothing more than a 
"political contrivance intended to reconcile national unity 
and power with the maintenance of state rights" through 
an adjustment satisfactory to both elements.^ The his- 
tory of federal states shows that they have generally been 
formed under the pressure of international necessity rather 
than under that of internal needs. ^ 

Whatever the method of procedure by which a federal constitu- 
union is established, there must be a common organic act Ylierli^ 
or constitution defining the relation between the federated Union 
state and the parts of which it is composed, and marking 
out for each its own sphere of action. This constitution 
must be paramount in respect to the constitutions of the 
component members, otherwise the maintenance of the 
federation intact will be impossible. It is also essential 

* On the methods of forming federal unions see Brie, "Theorie der Staatenver- 
bindungen," pp. 128 ff. ; and Jellinek, " Staatenverbindungen," pp. 253-275. 
^ "Law of the Constitution" (second edition), pp. 129-132. 
' Compare Martens, "Traite de Droit international," vol. I, p. 326. 



158 FORMS OF STATE AND ASSOCIATIONS OF STATES 



Need of 
Common 
Tribunal 
to inter- 
pret the 
Constitu- 
tion 



that this constitution should be written. The foundations 
of a federal state, to quote Dicey again, rest on a "compli- 
cated contract," and the arrangements which it establishes 
cannot safely be left to mere understanding or convention. 
Its articles must therefore be reduced to writing, and they 
ought to be clearly and fully stated on all fundamental 
points so as to remove the possibility of misunderstanding. 
The failure to do this in the constitution of the United 
States left open important questions which became the 
source of long and violent controversy and ultimately of 
civil war. These articles should not only be written, but 
they should possess a certain degree of rigidity ; that is, they 
should be rendered incapable of alteration by either the 
central or local governments, but should be alterable only 
by the power which created both and defined their spheres. 
Finally, there ought to be a common tribunal empowered 
to interpret the prescriptions of the federal constitution, 
to judge of the limits of the respective spheres of the central 
and local governments, and to hold in restraint the ten- 
dencies of each to encroach upon the domain assigned by 
the constitution to the other. This tribunal should be 
empowered to determine all controversies among the 
component states themselves as well as between them and 
the central government, and it ought to have also the 
power to set aside the provision of any local constitution 
or law which is inconsistent with the constitution or laws 
of the union. 



Charac- 
teristics 
of Part- 
sovereign 
States 



VIII. PART-SOVEREIGN STATES 

Many writers, as has been said, treat as states for limited 
purposes certain communities not in the possession of full 
sovereignty, and hence they do not consider sovereignty 
an essential mark of the state, at least for international 
purposes.^ Communities of this kind, while dependent to 

'Compare Westlake, for example, "International Law," vol. I, p. 21; also 
Hall, who recognizes states "in the possession of imperfect independence," " Inter- 



PART-SOVEREIGN STATES 159 

a greater or less extent upon other states, nevertheless 
usually possess large powers of local self-government and 
a limited international personality. But if we observe 
strictly the test laid down in an earlier chapter for deter- 
mining the state character, we cannot regard such communi- 
ties as states, but only as dependencies or parts of other 
states. The designation of states as part-sovereign is based 
upon the assumption that sovereignty is capable of being 
divided — a theory which the best writers regard as quite 
inadmissible, and the fallacy of which we shall endeavor to 
establish in our chapter on sovereignty. 

Examples of so-called part-sovereign states, Unterstaaten Examples 
as the Germans call them, are: (i) the component soverdgn 
members of federal unions; (2) communities under the states 
suzerainty of other states; and (3) communities under the 
protection of other states. The degree of autonomy pos- 
sessed by each and its status as an international entity 
depend upon the particular circumstances of each case, 
there being no general rule governing the matter. 

Regarding the first class of so-called part-sovereign states (i) Mem- 
— the members of federal unions — we have already Federal 
pointed out that rarely do they possess even the most Anions 
limited international personality.^ Although they are often 
called states and regarded as real states by some German 
writers of high standing, yet the. weight of the best scientific 
opinion is adverse to such a view. 

The second group of so-called part-sovereign states, (2) Suze- 
namely, communities under the suzerainty of other states, ^unities^ 
are, says Hall, portions of states which during a process of 

national Law," sec. 4. See also Oppenheim, "International Law," vol. I, pp. loi- 
103 ; Despagnet, " Cours de Droit international public," pp. 136-145 ; Nys, op. cit., 
vol. I, pp. 349-357; and Carnazza-Amari, op. cit., vol. I, pp. 322-367. 

* An exception is found in the power of the members of the German Empire to 
send and receive diplomatic envoys, to grant exequaturs to foreign consuls within 
their territories, and to enter into conventions with foreign powers, concerning 
matters not falling within the jurisdiction of the imperial government. Moore, 
"Digest of International Law," vol. I, p. 25. 



i6o FORMS OF STATE AND ASSOCIATIONS OF STATES 

gradual disruption or by the grace of the sovereign have 
acquired certain of the powers of an independent community, 
such as that of making commercial conventions or of con- 
ferring their exequaturs upon foreign consuls.* The para- 
mount state is called the suzerain, and its relation to the 
subject state is described by the term "suzerainty." * The 
relation between the suzerain state and the vassal state 
depends upon the circumstances of the particular case. 
In general it may be said that the vassal community has 
only such rights as have been expressly granted to it by 
the paramount state. It always has a certain international 
capacity, but is subject to a greater or less extent to the 
paramount state in the management of its foreign affairs. 
It is, however, generally independent of foreign control as 
regards its internal affairs. In the conduct of the foreign 
relations of the dependency the suzerain may have the full 
power of initiation, or partial initiation, or only the nega- 
tive power of veto over the acts of the vassal state. 
Examples Examples of communities under the control of a suzerain are 
rainties" Egyptaud, Until recently, Bulgaria. Egypt is a tributary and 
vassalstatetheoretically under the suzerainty of the Ottoman 
Porte, but in fact it is under the administration of England. 
It has a hereditary ruler of its own, but he receives his in- 
vestiture from the sultan. It sends and receives consuls, 
who may bear the added title of diplomatic agent, and has 
the power to conclude commercial and postal treaties with 
foreign states without the consent of the suzerain. Bul- 
garia, by the Treaty of Berlin, 1878, was made a "tributary 
and autonomous principality" under the suzerainty of 
Turkey. Like Egypt, it had the power to send and receive 
consuls and diplomatic agents, and in 1885 it waged war 
against Servia without the consent of Turkey, although its 
right to do so was denied. Bulgaria, however, has recently de- 
clared its independence of Turkey. Moldavia and Wallachia 

* " International Law," 3d ed., p. 31. 

* Moore, " Digest of International Law," sec. 13. 



tected 
States 



PART-SOVEREIGN STATES i6i 

were also formerly under the suzerainty of Turkey. The 
former South African Republic under the suzerainty of Great 
Britain was another example of this type of part-sovereign 
state. By a treaty of February 27, 1884, with Great Britain, 
it engaged to conclude no treaty with any other power 
than the Orange Free State without approval by the crown 
of England. The suzerain status is usually temporary and 
is generally terminated by the action of the vassal in throw- 
ing off its dependence, as Roumania did in 1878 and as 
Bulgaria did in 1908 ; or by conquest and annexation 
by the suzerain, as was the case with the South African 
Republic during the late Boer War.* 

The third form of the so-called part-sovereign state Is (3) Pro 
the "protected state." "For the purposes of inter- 
national law," says a noted authority, "a protected 
state is one which, in consequence of its weakness, has 
placed itself under the protection of another power on de- 
fined conditions or has been so placed under an arrangement 
between powers the interests of which are involved in the 
disposition." ^ Unlike a community under the suzerainty 
of another state, the rights of a protected state are rather 
residuary than delegated in their nature, and the presumption 
therefore is in favor of any international capacity claimed 
by it. Unlike a suzerain community, also, a protected 
state always retains a certain international capacity and is, 
therefore, a subject of international law. The establish- 
ment of a protectorate usually takes place when a weak 
state places itself under the guardianship and protection of 
a more powerful state, handing over to the latter the 
management of its more important foreign relations. 

' For the literature dealing with suzerainties, see Hall, op. cil., p. 31 ; Nys, 
op. cit., vol. I, pp. 357-364 ; Oppenheim, " International Law," vol. I, pp. 133-137; 
Westlake, "International Law," vol. I, pp. 25-27; Lawrence, " Principles of Inter- 
national Law," sec. 50; Wheaton, "Elements," sec. 37; Taylor, "International 
Public Law," sees. 140-144; and Boghitchevitch, " Halbsouveranitat." 

^ Hall, " International Law," sec. 4. 

POL. SCI. — II 



1 62 FORMS OF STATE AND ASSOCIATIONS OF STATES 



Examples 
of Pro- 
tectorates 



Examples 
of Pro- 
tected 
States 



The most recent example of the kind was the establish- 
ment of a protectorate by Japan over Korea in 1904. The 
degree of the control exercised by the protecting state 
varies widely and depends upon the particular facts of each 
case, the terms and conditions upon which the protectorate 
is maintained being embodied in a treaty between the 
protected state and the protector. Some, like the French 
protectorate of Indo-China, are nothing more than colo- 
nies; while others have practically complete control 
over their internal and external affairs. The citizens or 
subjects of a protected state retain their own distinct na- 
tionality, and must remain neutral in a war between the 
protecting state and a third power. In the case of the 
Ionian Islands, which were under the protection of Great 
Britain from 1815 to 1863, the control exercised by the 
protector included only the management of the foreign 
relations of the islands and the appointment of the execu- 
tive. The islands were declared to be a "free and inde- 
pendent state," were not included in British treaties unless 
especially named, received consuls from other states, and 
had their own commercial flag.^ 

The only protected states in Europe to-day are the petty 
republics of Andorra, under the joint protection of France 
and Spain, and of San Marino, under the protection of 
Italy, and possibly the principality of Monaco, which is 
theoretically under the protection of Italy. Inasmuch, 
however, as the right of protection in the latter case has 
not been exercised since the establishment of the Italian 
kingdom, Monaco is claimed by some to be an independent 
state.^ In Africa there are various petty states under the 
protection of European powers, among which may be men- 
tioned Zanzibar and Tunis, under the protection of Great 
Britain and France respectively. Until 1896 Madagascar 

'Hall, op. cit., p. 30; Wheaton (Lawrence's ed.), p. 6i ; Twiss, "Law of 
Nations," ch. 4; Philliraore, " LUernational Law," vol. I, sec. 77. 
' Cf. Oppenheim, op. cit., vol. I, p. 139 ; Hall, op. cit., p. 31. 



NEUTRALIZED STATES 163 

was a French protectorate, but in that year it was annexed 
to France as a colony/ 

IX. NEUTRALIZED STATES 

A State whose independence and integrity have been 
guaranteed by the joint action of other states and placed 
in a condition in which it is forbidden to engage in offensive 
war is said to be neutralized. Its immunity from attack 
on the part of other states is usually guaranteed by 
way of compensation for the restriction placed upon its 
freedom of action with regard to making offensive war. 
The status of neutralization may be conferred upon a weak 
state at its own request as a means of protection against 
ambitious and unscrupulous neighbors; or it may be con- 
ferred without regard to its own wishes by other states out 
of considerations affecting the general peace or the balance 
of power. Small states so geographically situated that 
they are in danger of being overrun by contending armies 
and of having their neutrality otherwise disregarded by 
opposing belligerents, are those which have usually been 
neutralized by the collective action of other states. The 
method by which neutralization takes place is usually by 
internationaJ treaty between the powers concerned. The 
state so neutralized must abstain from engaging in hostili- 
ties against other states except as a matter of defense and 
must avoid any act which would involve it in war with 

* For the literature of protectorates see in addition to the authorities cited: Des- 
pagnet, " Essai sur les Protectorats " (1896) ; Boghitchevitch, " Halbsouveranitat " 
(1903); Heilborn, "Das volkerrechtliche Protectorat" (1891); Carnazza-Amari, 
op. cit., vol. I, pp. 265-269; Engelhardt, " Les Protectorats" ; Le Furund Posener, 
op. cit., sec. 8; Wheaton, sec. 13; Rivier, "Principes," vol. I, pp. 79-93; Oppen- 
heim, sec. 92; Nys, op. cit., pp. 364-366; Moore, "Digest," sec. 14; "Colonial 
Systems of the World " (published by the U. S. Bureau of Statistics, Treasury De- 
partment, 1898); Pradier-Fodere, "Traite de Droit international public," vol. 
I, pp. 176 ff. See also an article entitled " Uber den Staatsbegrifif " by Werner 
Rosenberg, " Zeitschrift fiir die gesamte d. Staatswissenschaft," 1909, Erstes Heft, 
pp. 22-31. 



164 FORMS OF STATE AND ASSOCIATIONS OF STATES 



Examples 
of Neu- 
tralized 
States 



another state. In all other respects it is fully sovereign 
and independent, and can enter into treaties of all kinds, 
except possibly those of alliance and guarantee, and can 
of course maintain armies and navies for purposes of 
defense/ 

Examples of neutralized states are: Switzerland, whose 
permanent neutrality was recognized and guaranteed by 
the Powers through the act of the Vienna Congress in 18 15; 
Belgium, whose neutrality was guaranteed by the Treaty 
of London in 1831 and renewed by a similar treaty in 1839; 
the Grand Duchy of Luxembourg, neutralized by the 
Treaty of London in 1867; and the Congo Free State, 
whose neutrality the signatory powers of the General Act 
of the Berlin Congo Conference of 1885 agreed to "respect" 
provided the power in possession of the Congo territory 
should proclaim its neutrality. This the king of the Bel- 
gians did, and his act was recognized by the powers. Fi- 
nally, by a treaty signed at Christiania, November 2, 1907, 
Great Britain, France, Germany, and Russia, "animated by 
a desire to secure to Norway . . . her independence and 
territorial integrity, as also the benefits of peace," obligated 
themselves to "recognize and respect" the integrity of 
Norway, and agreed in case the integrity of the Norwegian 
kingdom was "threatened or impaired by any power 
whatsoever," they would afford the Norwegian govern- 
ment their support with a view to safeguarding the integ- 
rity. Norway was also a party to the treaty, and agreed 
not to cede any portion of its territory to any power.^ 



' An exception is found in the treaty by which Luxembourg was neutralized. This 
treaty forbids the maintenance of any fortress or the keeping of any armed force 
except what may be necessary for the maintenance of domestic order and safety. 

* For the literature relating to neutralized states see Despagnet, " Cours de 
Droit international public," pp. 145-162; Nys, op. cii., vol. I, pp. 379-398; Op- 
penheim, vol. I, pp. 140-146; Moore, "Digest," vol. I, sec. 12; Holland, "Studies 
in International Law," pp. 270-272; Rivier, "Principes, " vol. I, sec. 7; Piccioni, 
"Essai sur la Neutrality perpetuelle"; Regnalt, "Des effets de la Neutralite per- 
petuelle"; Tswettcoff, "De la Situation juridique des Etats neutralises." 



INTERNATIONAL UNIONS 165 



X. INTERNATIONAL UNIONS 

For the accomplishment of certain common objects and juristic 
the promotion of mutual interests, states not infrequently union °* 
associate themselves by formal agreement into unions 
(Staatenvereine, Staatengemeinschaften) . Such unions in the 
past have been numerous and diverse in character. They 
have differed not only as regards their legal nature, but also 
as regards their purposes, objects, and duration. Juris- 
tically considered, the basis of the union may be: first, the 
principle of equality or coordination, according to which 
each member retains its sovereignty and independence un- 
restricted; second, the principle of inequality according to 
which some of the members stand in the relation of superior- 
ity to others, the latter occupying a status of subordination ; 
and, third, the principle of equality among the associated 
members, all of which have the same power, but are subor- 
dinate to a central government/ 

According to Brie and Jellinek international unions may Unor- 
again be classified as unorganized and organized. An unor- fnd'or- 
ganized union is one in which more or less permanent rela- gamzed 
tions are established for the promotion of common policies 
or the maintenance of certain relations, but in which there 
is no common governmental organization for the exercise of 
a common will, or for purposes of administration. Jellinek 
enumerates as examples of unorganized unions: alliances 
of various kinds, leagues of friendship, loosely connected 
federations, and a certain kind of composite state which he 
describes by the term Staatenstaat ; that is, a so-called 
state composed not of individuals, but of inferior states, 
which receive their powers from a superior. Examples of 
the Staatenstaat were the feudal states of the Middle Ages 
and the old German Empire after the Peace of Westphalia.^ 

' Brie, "Theorie der Staatenverbindungen," p. 25. See also Jellinek, "Lehre 
von den Staatenverbindungen," pp. 58 ff. 

^ For Jellinek's conception of the Staatenstaat ?,e.e his "Staatenverbindungen," pp. 
137 ff. See also Gareis, " Allgemeine Staatslehre " in Marquardsen's Handbuch, 
vol. I, sec. 39, for a discussion of the Staatenstaat. 



1 66 FORMS OF STATE AND ASSOCIATIONS OF STATES 



Inter- 
national 
Adminis- 
trative 
Unions 



Other examples were the Christian states of the Moham- 
medan Empire; the vassal states of the Ottoman Porte, 
such as Egypt and Tunis; such relationships as those be- 
tween the United States and the Indian tribes, and between 
Nicaragua and the Mosquito Coast; the tributary states 
of Asia; the native states of India; the relation of Holland 
to Java; the relation between China and Siam; etc.* 

The organized union differs from the unorganized union 
in possessing the element of permanency, an independent 
administrative organ, and a common will. Examples of 
this type of union are: (i) the various international admin- 
istrative unions; (2) real unions; (3) confederations {Staat- 
enbunden) ; and (4) federal unions {Bundesstaaten) . Of 
these all except the first mentioned have already been 
described. 

Among the more important international administrative 
unions may be mentioned: (i) the International Postal 
Union, established by treaty in 1874, fo^ the creation 
of a single postal territory for the reciprocal exchange 
of mails between the member states; (2) the Inter- 
national Rhine Navigation Commission, created by the 
Vienna Congress for the enforcement of common regu- 
lations governing the navigation of the river Rhine; 
(3) the European Danube River Commission, created in 
1856 by the Treaty of Paris for a similar purpose and 
having permanent offices at Galatz; (4) the International 
Telegraph Union, created in 1865 by the Conference of 
the Powers at St. Petersburg; (5) the International 
Metric Union, created in 1875, and having as its common 
organ the International Bureau of Weights and Measures, 
with permanent offices at Sevres, near Paris; (6) the 
International Union of Railway Freight Transit, created in 
1893, and having a central bureau at Berne; (7) the In- 
ternational Union for the Protection of Literary and Ar- 
tistic Property, with a permanent central bureau at Berne; 

* Jellinek, "Staatenverbindungen," pp. 137-157. 



INTERNATIONAL UNIONS 167 

(8) the International Association for the Protection of 
Labor, with an international office at Berne; (9) the In- 
ternational Sugar Commission, with a bureau at Brussels; 
(10) the International Commission of Insurance, with a 
bureau at Brussels; (11) the International Prison Asso- 
ciation, with a secretariat at Berne; (12) the International 
Sanitary Association, with an office at Paris; (13) the In- 
ternational Bureau of American Republics at Washing- 
ton, created in 1890 and reorganized in 1906; (14) the 
Congress of Hygiene and Demography, with a permanent 
commissioner at Brussels; (15) the International Seismo- 
logical Association; (16) the International Office of Public 
Health, created by an international convention signed 
at Rome in December, 1907; and (17) the International 
Institute of Agriculture at Rome, created by an inter- 
national convention signed at Rome, July 7, 1905. It is 
announced that an International Bureau of Wireless Teleg- 
raphy is to be established in the near future. Most of 
these unions have been created by international agree- 
ment, and some of them, like the Postal Union, embrace 
practically all the civilized states of the world. Provision 
is made in the acts creating some of them for the holding 
of congresses at periodic intervals at which each member 
state may be represented and entitled to one vote. Thus 
a congress representing the Telegraph Union is held every 
three years; the Postal Congress meets every five years; 
the Union of Weights and Measures holds a congress every 
six years. Most of them maintain a centra! administrative 
bureau or office, usually at Berne. The river commissions 
have inspectors to supervise the execution of common 
arrangements, and the common expenses are borne by the 
members of the union in some proportion agreed upon.* 

^ See a valuable article by Paul S. Reinsch entitled "International Unions and 
their Administration," in the " American Journal of International Law," for July, 
1907. See also G. Moynier, "Les bureaux internationaux" (1892); Deschamps, 
"LesofEcesinternationaux "; and Held, "System der Verfassungsrecht," ch. 15. 



CHAPTER VI 

FORMS OF GOVERNMENT 

Suggested Readings: Aristotle, "Politics," III, 6; Bentham, 
*' Fragment on Government," Works, vol. I. pp. 272-276; Blunt- 
SCHLI, "AUgemeine Staatslehre," bk. VI, chs. 19-23; Bornhak, 
" AUgemeine Staatslehre," pp. 25-62; Bradford, "Lessons of Popular 
Government," vol. I; chs. 2, 3, 14; vol. II, ch. 28; Brougham, 
"The British Constitution," Works, vol. XI, chs. i and 2; Jethro 
Brown, " The Austinian Theory of Law," ch. 4; Burgess, " Political 
Science and Constitutional Law," vol. II, bk. Ill, chs. i and 2; De 
Parieu, "Principes de la Science politique," chs. 1-5; De Tocque- 
viLLE, "Democracy in America," pt. II, bks, II and III; Duguit, 
"Droit constitutionnel," pt. I, sees. 51, 52, 58, 59, 61; also his 
"L'Etat, les Gouvernants et les Agents," ch. 3; Esmein, "Droit 
constitutionnel," pt. I, chs. 2, 5; " FederaHst," Nos. 10, 14, 39; 
Gareis, "Allgemeine Staatslehre," in Marquardsen's "Handbuch 
des bflfentlichen Rechts," vol. I, sees. 12-21, 38-42; Gerber, " Grund- 
ziige des deutschen Staatsrechts," sees. 24-34; Laveleye, "Le 
Gouvernement dans la Democratie," vol. I, bks. V, VI ; vol. II, bks. 
X, XI; Leacock, "Elements of Pohtical Science," pt. I,ch. 7; Lecky, 
"Democracy and Liberty," vol. I, chs. i, 3; Lewis, "Use and Abuse 
of Political Terms," pp. 58-97; Locke, "Two Treatises of Govern- 
ment," sees. 132-133; Maine, "Popular Government," essays I, II; 
Meyer, "Deutsches Staatsrecht," sees, i, 8, 9, 12, 13, 14; Mill, 
"Representative Government," chs. 1-3, 6-7, 8; Moreau, "Precis 
61ementaire de Droit constitutionnel," pp. 26-40; Paley, "Political 
and Moral Philosophy," bk. VI, ch. 6; Pradier-Fodere, "Principes 
generaux de Droit de Politique et de Legislation," chs. 9 and 10; 
Prins, "Del'Esprit du Gouvernement democratique," chs. i and 2; 
Rehm, "Allgemeine Staatslehre," sees. 39-48, 84-85; Roscher, 
"PoHtik," bk. I, ch. 2; bk. II, ch. 5; bk. IV, ch. 2; Rousseau, "Con- 
trat social," bk. II, chs. 3-9; Sidgwick, "Elements of Politics," chs. 
26-30; Vacherot, "La Democratie," especially chs. i and 2; Waitz, 
"Grundziige der Politik," pp. 153-219; Willoughby, "Nature of 
the State," ch. 13; Woolsey, "PoUtical Science," vol. I, pt. Ill, 
chs. 2 and 3; vol. II, pt. Ill, chs. 4, 6, 7, 8; Zacharia, "Vierzig 
BUcher vom Staate," bks. 16-19. 

168 



MONARCHIES, ARISTOCRACIES, AND DEMOCRACIES 169 



I. MONARCHIES, ARISTOCRACIES, AND DEMOCRACIES 

Having examined the several forms of states and asso- principle 
ciations of states, we come now to consider the forms of fiction'" 
government, keeping in mind that government is not the 
state, but, as Francis Lieber has remarked, merely the 
instrument or contrivance through which the state acts in 
all cases in which it does not act by direct operation of its 
sovereignty/ Following the same principle observed in 
the classification of states, namely, the number of persons 
in whom the supreme power is vested, we shall find that 
governments may be classified as monarchical, aristocratic, 
and democratic.^ If the supreme governing authority is 
vested in a single person, however numerous his subordi- 
nates, the form of government is said to be monarchical.' 
Popular usage, however, considers any government having 
a hereditary executive to be a monarchy, even though its 
legislative department rests upon a popular basis. In 
short, popular usage makes the test the nature of the 
executive tenure and the tenure of the titular executive at 
that."* Thus most of the governments of Europe are com- 

> "Political Ethics," vol. I, p. 238. 

^ The classification of governments with respect to whether the controlling power 
is in the hands of one man, a few or the many, is, says Willoughby ("Political 
Theories of the Ancient World," p. 108), as old as Pindar and Herodotus. See also 
Woolsey, " Political Science," vol. I, pp. 466-468. It was, as we have seen, Aris- 
totle's basis of classification for states, though there is a difference of opinion as to 
whether his classification was intended to be that of states or governments. See his 
" Politics," III, 6. 

' Manifestly no satisfactory definition of monarchy can be framed. The above 
definition, for example, will not fit the numerous plural monarchies to be referred 
to below. On the other hand it describes pretty accurately some republics which 
have at their head a single executive. 

* Some political writers of high standing accept this test as proper. Duguit, for 
example ("Droit const.," p. 375), defines monarchy as "that form of government 
in which the chief of state is hereditary." According to him the hereditary tenure 
of the executive is the mark which distinguishes a monarchy from a republic, the 
latter being defined by him as a form of government in which the chief of state is 
not hereditary but elective. Jellinek ("Recht des mod. Staates," p. 653) criticises 
such a distinction as an abstraction and shows that the correct test is not the nature of 



170 FORMS OF GOVERNMENT 

monly styled monarchies, when in reality only the execu- 
tive part of the government is constituted on the monarch- 
ical principle. The modern term "monarchy," as Sidgwick 
observes, is largely used to denote governments in which 
only a share of power is left to the single individual called 
the monarch/ 

If the supreme governing authority is intrusted to a 
small group or class of the population, the government is 
said to be aristocratic. It is a government in which only 
a minority of the citizens have a share, the rest of the 
population, as Montesquieu remarks, being in respect to 
the former the same as the subjects of a monarch in 
regard to the sovereign.^ If the great mass of the adult 
male citizens share in T:he government, either through 
the choice of its agents, through participation in the 
enactment of law by means of the so-called initiative or 
referendum, or through a popular assembly of all the 
citizens, we have a democratic form of government or a 
democracy. Professor Seeley defined democracy more 
broadly as a government in which every one has a share.' 
John Austin said it signified any government in which the 
governing body is a comparatively large fraction of the 
entire nation. Sir Henry Maine said it could be most ac- 
curately described as "inverted monarchy." * 

the executive tenure, but the number of persons in whom the governing power is 
vested. Furthermore, as will be shown later, there have been numerous examples 
of elective monarchies as well as hereditary republics, such as the Netherlands in 
the seventeenth and eighteenth centuries. 

'"Elements of Politics," p. 607. Bernatzik {Republic und Monarchic) con- 
tends that the true criterion is, that in a monarchy, whether absolute or limited, 
hereditary or elective, the head of the state has a subjective right to his office 
irrespective of the method of his selection. The head of a republic, however, has 
no such right to his office. 

* " Esprit des Lois," bk. II, ch. 3. Cf . also Aristotle, " Politics," IV, 7. 
' " Introduction to Political Science," p. 324. 

* " Popular Government," p. 59. Thomas Jefferson conceived democracy to be 
government by the citizens in mass, acting directly and personally according to rules 
established by the majority (Works, vol. X, p. 28). A democracy, said Hamilton, is a 



MONARCHIES, ARISTOCRACIES, AND DEMOCRACIES 171 

The classification of governments as monarchical, aris- Non- 
tocratic, and democratic is identical with the classification o*J*sta*te 
of states given in the preceding chapter, but it does not andcov- 

r ,, 1 1 r r • • • crnmentai 

follow that the form of government m any given state is Forms 
necessarily identical with the form of state, though usually 
they are similar in form and spirit. A democratic state, 
for example, is apt to have a government in which demo- 
cratic or popular elements predominate. But while this 
is the natural and usual condition, it is quite possible 
that a democratic state should have a government organ- 
ized upon an aristocratic basis. Indeed, it is difticult to 
see why such a system is not the nearest approach to 
the ideal, provided the aristocracy is one of real merit 
rather than one which is artificial in character.* Strictly 
speaking, there are no longer any pure monarchical gov- 
ernments in Europe. What are loosely and popularly 
called such are in fact mixed governments, that is, gov- 
ernments composed of monarchical, aristocratic, and de- 
mocratic elements combined. The truth is, as Rousseau 
remarks, all governments are in a sense mixed .^ There is 

government where the power is in the hands of the people and is exercised (i) by 
themselves, (2) by their representatives, mediately or immediately. "Federalist," 
No. 9. 

' Compare Burgess, "Political Science and Constitutional Law," vol.1, p. 72. 

^"Contrat social," bk. Ill, ch. 7. Aristotle, Plato, Cicero, and Polybius seem 
to have recognized the mixed type of constitution, Cicero and Polybius treating 
Rome as an example of such a form. Polybius dwelt upon the excellence of this form, 
and declared it to be the best of all for men. (See Woolsey, "Political Science," 
vol. I, pp. 470-472.) Woolsey (p. 474) criticises the term "mixed" on the ground 
that a government cannot be partly in the hands of one, the few and the many. He 
prefers the term "limited" instead. Tacitus spoke of a government compounded 
out of democratic, monarchical, and aristocratical elements. Pradier-Fodcre, in his 
'Trincipes generaux de Droit de Politique," etc. (ch. 9), discussed mixed forms at 
length and pointed out that the varieties are almost infinite in number. It would be 
necessary, he said, to write the history of all peoples in order to enumerate all the 
forms of mixed constitutions that have been in force since the beginning of the 
world. Bluntschli, in his"AlIgemeine Staatslehre " (bk. VI, ch. 2), devotes a chapter 
to what he styles the "mixed state." But strictly speaking, there can be no such thing 
as a mixed state, the term " mixed " being descriptive only of a form of government. 
Compare also Treitschke, "Politik," vol. II, p. 13, who defined a mixed state as one 



Monar- 
chies 



172 FORMS OF GOVERNMENT 

no modern civilized state in which the governing power is 
vested wholly in the hands of a single person. In the typi- 
cal monarchies, so called, of Europe, there is an hereditary 
chief of state and a legislative body, containing usually 
both aristocratic and democratic elements. Only in cer- 
tain absolute states of Asia and Africa do we find anything 
approaching pure monarchical government, that is, one 
in which the ruling power is vested in the hands of a single 
person. 
Elective On the basis of the source or tenure of the executive, 

monarchies may be classified as hereditary or elective, or 
they may be a combination of both. All of the monar- 
chies of the present day are hereditary, though there have 
been many exceptions in the past. The early Roman 
kings were elective, as were the kings of the ancient mon- 
archy of Poland. The head of the Holy Roman Empire, 
as is well known, was chosen by a small college of electors, 
though usually from the same family. Under the Treaty 
of Berlin, of 1878, the reigning prince of Bulgaria owed his 
throne to election. In general, it may be said that the 
installation of dynasties in newly formed states usually 
takes place through election, though the crown thereafter 
is generally transmitted according to certain rules of heredi- 
tary succession.^ It may also be stated as a general propo- 
sition that in the early history of states kings were generally 
chosen or in some way accepted in the first instance, though 

in which monarchy, aristocracy, or democracy are "moderated or limited by other 
political factors," as where a monarchy is limited by an aristocratic or popular 
chamber. If applied to the description of a form of government, no fault can be 
found with this statement. On the subject of mixed governments see De Parieu, 
" Principes de la Science politique," ch. 5, and " The Federalist," No. 9. 

* Thus the present wearer of the crown of Norway was elected by the parlia- 
ment only after a plebiscite which pronounced in his favor, but henceforth the 
crown will be transmitted according to the principle of hereditary succession. 
In 1903 after the assassination of the king of Servia, his successor was chosen 
by the national parliament. Roscher ("Politik," p. 23) maintains that an elective 
monarchy is no true monarchy, but only a special kind of republic, a view which 
has much to commend it. 



MONARCHIES, ARISTOCRACIES, AND DEMOCRACIES 173 

the hereditary feature was so strong that the elective prin- 
ciple was gradually pushed into the background.^ Speak- 
ing of the election of the early English kings, Stubbs ob- 
serves that "the king was in theory always elected and the 
fact of election was stated in the coronation service through- 
out the Middle Ages in accordance with the most ancient 
precedent." ^ " But," he adds, "it is not less true that 
the succession was by constitutional practice restricted 
to one family, and that the rule of hereditary succession 
was never, except in great emergencies and in most trying 
times, set aside." In a sense, of course, the English mon- 
archy is still elective, since Parliament claims and exer- 
cises the right to regulate the law of succession at its 
pleasure.^ 

Again, monarchy may be either of the absolute type, in Absolute 
which case the monarch is sovereign, and state and gov- Lhnited 
ernment, legally and politically speaking, are identical, or Monar- 
it may be constitutional or limited in form. In the for- 
mer case the monarch is bound by no will except his own ; 
in the latter case he is bound by the prescriptions of a 
constitution which he has sworn to support, and hence the 
royal office is nothing but an organ of government. No 
examples of the former type of monarchy, as has been said, 
are found to-day outside of Asia and Africa. All of the 
so-called monarchies of continental Europe now have 
written constitutions, framed either by national assem- 

^ Compare Woolsey, "Political Science," vol. I, pp. 520-528. 

^"Constitutional History of England," vol. I, p. 150. Waitz ("Deutsche 
Verfassungsgeschichte," vol. I, p. 298) points out that most of the early German 
monarchies were elective. The right of the reigning king to recommend his successor 
was recognized, but the people "confirmed, acknowledged, and chose." 

^ William and Mary, for example, were chosen as reigning sovereigns in 1689 by a 
convention Parliament ; and two years later a new law of succession was passed, fixing 
the crown on a different branch of the royal house from that upon which it would 
have descended according to the existing rules of succession. The history of other 
countries of Europe furnishes examples of elective monarchies. Thus Louis Napo- 
leon became emperor of the French in 1852 through the forms of a plebiscite; and 
a vacancy in the Spanish throne was filled by parliamentary election in 1873. 



174 



FORMS OF GOVERNMENT 



Kinds of 
Aris- 
tocracy 



blies representing the people, or granted by ruling sover- 
eigns and accepted by the people/ Monarchies may of 
course be still further subdivided, but little or nothing 
would be gained by extending the classification beyond 
hereditary and elective, absolute and limited types.' 

Aristocracies, like monarchies, may likewise be of sev- 
eral varieties. There may be aristocracies of wealth, and 
these may be based either on ownership of land or of all 
property in general; or they may be hereditary and hence 
based upon birth or family connection; or they may be 
official in character, that is, composed mainly of those 
who hold or have held public office; or they may be mili- 
tary or a combination of some or all of the above elements.' 

^ States as well as governments are sometimes classified as absolute and limited, 
but obviously no such classification can be defended. Legally all states in the sense 
in which the term "state" has been defined in this work are absolute and un- 
limited as to their powers, and hence it is superfluous to speak of an absolute state 
and an error to speak of a limited state. Such terms are descriptive of governments 
only. Legally what is sometimes called a limited or part-sovereign state is in fact 
nothing but a dependency of some other state. 

' Bluntschli ("Allgemeine Staatslehre," bk. VI, ch. 7) extends the classification of 
monarchies much farther and recognizes the following forms: despotisms, civilized 
monarchies, patriarchal kingships, feudal monarchies, Prankish monarchies, abso- 
lute monarchies, constitutional monarchies, limited monarchies, military and judicial 
principalities, etc. See also his essay entitled " Staatsformen," in his " Psycho- 
logische Studien iiber Staat und Kirche." Such a classification rests upon no 
single logical consistent principle and has no interest for us. Woolsey classified 
monarchies as city states, absolute monarchies, theocratic monarchies, limited, 
elective, mixed, and constitutional monarchies. "Political Science," vol. I, pp. 
485 S. The classification given in the text above is that adopted by Jellinek, 
though he goes farther and subdivides the limited type into parliamentary and con- 
stitutional forms ("Rechtdes mod. Staates," pp. 670-692). For further discus- 
sion of monarchical governments, see Duguit, "Droit constitutionnel," sec. 58; 
Bluntschli, "Politik," pp. 295-304; Jellinek, op. cii., pp. 653-692; Roscher, 
"Politik," bks. I and III; Bruno Schmidt, "Allgemeine Staatslehre," vol. I, 
pp.264 ff-J Pradier-Fodere, "Principes generaux de Droit de Politique," etc., 
pp. 242-244; Bernatzik, "Repubiik und Monarchic." 

' Rousseau classified aristocracies as natural, hereditary, and elective ("Contrat 
social," bk. Ill, ch. 5). Roscher ("Politik," sec. 18) classified them as noble or 
landed {Ritteraristokratie), priestly, and plutocracies and oligarchies. The ancient 
writers, among them Aristotle, considered an oligarchy to be a government by a 
wealthy minority in their own interest ; that is, it was a perversion of aristocracy. 



MONARCHIES, ARISTOCRACIES, AND DEMOCRACIES 175 

Democracies are of two kinds: pure or direct, and rep- Kinds of 
resentative or indirect.^ A pure democracy is one in '^^^'"^- 
which the will of the state is formulated and expressed 
directly and immediately through the people acting in 
their primary capacity. A representative democracy is 
one in which the state will is ascertained and expressed 
through the agency of a small and select number who act 
as the representatives of the people. A pure democracy 
is practicable only in small states where the voting popu- 
lation may be assembled for purposes of legislation, and 
where the collective needs of the people are few and 
simple. In large and complex societies, where the legisla- 
tive wants of the people are numerous, the very necessi- 
ties of the situation make government by the whole body 
of citizens a physical impossibility. 

In the city states of antiquity pure democracies were not Pure De- 
impossible, and they were not uncommon; but in the states ^°"^^^ 
of the modern world and under modern conditions they are 
impossible. The only surviving examples to-day are 
found in four of the petty and largely primitive cantons 
of Switzerland. What is in substance a representative de- 
mocracy is sometimes called a republic or a republican 
government. 

Although restricted by modern usage to a government Republics 
conducted through agents popularly chosen, yet the term 
"republic," as Hamilton and Madison pointed out in 
"The Federalist," has often been employed to describe 
governments which popular usage to-day w^ould designate 

Professor Seeley remarks that an oligarchy is a deranged and diseased aristocracy 
("Introduction to Political Science," lect. VI). The ancients distinguished carefully 
between aristocracy and oligarchy, always regarding the latter as a perverted form of 
aristocracy. Popular usage to-day, however, disregards the distinction, both having 
a bad signification. Some writers distinguish between aristocracy and oligarchy as 
follows: an aristocracy is a government by a class, while an oligarchy is a govern- 
ment by a small number of persons who do not necessarily constitute a class or 
system. Cf. Pradier-Fodere, "Principes generaux," etc., p. 241. 

* On the nature and kinds of democracy see Roscher, "Politik," pp. 308-454. 



176 FORMS OF GOVERNMENT 

as monarchical or aristocratic* Thus Sparta, Athens, 
Rome, Carthage, the United Netherlands, Venice, and 
Poland have all been described by political writers as 
republics, though none of them possessed that full repre- 
sentative character which we to-day consider to be the 
distinguishing mark of a republic. Rome, for example, 
was organized on a military basis, Venice was an oli- 
garchy of hereditary nobles, Poland was a mixture of aris- 
tocracy and monarchy. France under the constitution of 
the year XII (Tit. I, sec. I) was styled a republic, though 
the chief of state bore the title and rank of emperor, and 
the crown was hereditary in the Napoleonic family. 
What is The constitution of the United States imposes upon 

lic^ Gov- the national government the duty of guaranteeing to the 
ernment? component statcs a republican form of government, but 
it does not attempt to define the essential characteristics 
of such a government, simply assuming that they are 
too well understood to admit of a difference of opinion. 
Madison in "The Federalist" said it was a government 
in which there was "a scheme of representation." ^ It 
was, he said, "a government which derives all its powers, 
directly or indirectly, from the great body of the people 
and is administered by persons holding their ofHces during 



^ "The Federalist," No. 39. Sir Henry Maine remarks that the term "republic " 
was once used to signify in a vague way a government of any sort which had no hered- 
itary king, but which has come to have the added meaning of a government resting 
on a widely extended suffrage. "Popular Government," p. 198. Bluntschli observes 
in his "Politik" (pp. 295 ff.) that a republic may be understood in a wide and 
a narrow sense. In the wider sense we designate as republics all states in which the 
idea of the common good {res publico) prevails, that is, all states with public law {jiis 
■publicum). In this sense the natural law writers of the seventeenth and eighteenth 
centuries spoke of all free states as republics. In this sense, also, says Bluntschli, 
a government is republican where no one holds public power as a property right, 
where all power is exercised for the common good, where the inhabitants are sub- 
jects and free citizens at the same time, etc. In a narrower sense a republic is used 
in opposition to a monarchy. In this sense it has reference to a government exercised 
through a collection of persons, and is either an aristocracy or a democracy. 

2 " The Federalist," No. 10. 



MONARCHIES, ARISTOCRACIES, AND DEMOCRACIES 177 

pleasure, for a limited period or during good behavior." * 
The two "great points of difference," said Madison, "be- 
tween a republic and a democracy are: first, the govern- 
ing power in a republic is delegated to a small number of 
citizens elected by the rest; and, second, a republic is 
capable of embracing a larger population and of extend- 
ing over a wider area of territory than is a democracy. 
In a democracy the people meet and exercise the govern- 
ment in person; in a republic they assemble and administer 
it by their representative agents." ^ Madison rightly re- 
garded hereditary tenures as inconsistent with modern 
notions of republican government, although he considered 
good behavior tenure for the judiciary at least admissible. 
It is also essential to the republican idea that the prin-. 
ciple of representation shall be based upon a reasonably 
wide suffrage. A suffrage so restricted, for example, as 
that which existed in France under the restored monarchy 
(1814-1830), when the number of voters did not exceed 
300,000 out of a total population of 10,000,000, would 
hardly be considered consistent with republican govern- 
ment. 

Republics have been classified as aristocratic and demo- 
cratic; ' as monocratic and plutocratic; * unlimited, mixed, 
and limited ; ^ as corporate, oligarchic, aristocratic, and dem- 

' Ibid., No. 39. A republic, says Jellinek, is the negation of monarchy. It 
is government, not by a single physical person, but by a collegia! organization 
more or less numerous. The German Empire he describes as a republic rather 
than a monarchy because the highest Staatsgewalt is not in the hands of a single 
person ("Rechtdes mod. Staates," p. 695). Duguit, as wehaveseen, made the tenure 
of the chief of state the test of distinction between a monarchy and a republic; in the 
former the tenure is hereditary, in the latter elective ("Droit constitutionnel," 
p. 37S). Bernatzik, as we have said, makes th; distinction turn on the question 
of whether the head of the state has a subjective right to his office. 

* "The Federalist," No. 14. It is clear that Madison here had in mind a pure 
rather than a representative democracy. 

^ Lewis, "Use and Abuseof Political Terms," p. 69; Montesquieu, bk. II, chs. i 
and 2; also bk. Ill, ch. 3. 

* Gareis, "Allgemeine Staatslehre," in Marquardsen's "Handbuch, " vol. I, p. 39. 
' Martens, "Precis du Droit des Gens," vol. I, sec. 27. 

POT,. SCI. — 12 



178 



FORMS OF GOVERNMENT 



ocratic; * as federal and confederate; as centralized and 
unitary; as hereditary and elective,^ etc. 

The classification of governments as monarchies, aris- 
tocracies, and democracies has lost its former importance 
and now possesses little interest for the political scientist. 
To speak of a government as monarchical or aristocratic 
conveys little or no idea of its structural organization or 
processes of action. Many so-called monarchies are such 
only in name, and there is no fundamental difference in 
principle between aristocracies and democracies, the only 
distinction being one of degree. Such a classification puts 
governments as widely difi"erent as those of Great Britain, 
Prussia, Russia, and Turkey in the same class, others as 
different as those of France and the United States in an- 
other and the same class. It is necessary, therefore, to 
find other principles of classification in order to be able 
to classify governmental forms in any satisfactory or con- 
sistent manner. 



other 

Classifica- 
tions 



II. OTHER CLASSIFICATIONS; CABINET AND PRESIDENTIAL 

GOVERNMENT 

Montesquieu classified governments as republics, monar- 
chies, and despotisms. He defined a republican govern- 
ment as one in which the whole body or a part of the people 
exercises supreme power; a monarchy as one in which a 
single person governs by fixed and established laws; a 
despotism as one in which a singie person directs every- 
thing by his own will and caprice.'^ The principle under- 
lying this classification is partly numbers and partly the 
spirit and character of the government. Woolsey clas- 
sified governments as monarchies, aristocracies, democra- 
cies, and "compound states." * Other writers recognize 

• Jellinek, "Recht des mod. Staates," p. 696. 
' Martens, op. cit., sec. 26. 

• "Esprit des Lois," bk. II, chs. i and 2; also bk. Ill, ch. 3. 

• "Political Science," vol. I, pp. 485 ff. 



OTHER CLASSIFICATIONS 179 

only two forms, namely, monarchies and republics, the lat- 
ter comprehending both aristocracies and democracies.^ 

The fault with most classifications of governments is, as 
was said of the classifications of states, that they do not 
rest upon any consistent scientific principle which will 
serve as a basis for the differentiation of governments with 
respect to their fundamental characteristics. No single 
classification can be of much value; there must be as many 
classifications as there are points of view from which the 
government may be considered. 

A well-known authority on political science adopts the Suggested 
following canons of distinction in classifying governmental orciass^ 
forms: first, the identity or non-identity of the state with fication 
its government; second, the nature of the official tenure, 
including the method of constituting the ofBcial relation; 
third, the relation of the legislature to the executive; and 
fourth, the concentration or distribution of governmental 
power.^ 

Upon the basis of the identity or non-identity of the Primary 
state with the government, they may be classified as pri- ggntatlv" 
mary or representative. The pure democracy, where the ^overn- 
citizens assemble in mass meeting and enact the laws of 
the state and frame administrative regulations, is, of course, 
the nearest approach to what we have called primary 
government. Where, on the other hand, the sovereign has 
delegated to an organ or organs the power to act for it 
in matters of government, as is now the almost univer- 
sal practice, we have representative government in some 
form, though not necessarily popular government.' 

* For example, Georg Meyer, Schulze, and Zacharia. Alexander Hamilton classi- 
fied governments as democratic, aristocratic, monarchical, and mixed. "The Fed- 
eralist," No. 9. 

* Burgess, "Political Science and Constitutional Law," vol. II, bk. Ill, ch. i. 
'"We mean by representative government," said Lord Brougham ("British 

Constitution," Works, vol. XI, p. 89), "one in which the body of the people, either in 
whole or in a considerable proportion of the whole, elect their deputies to a chamber 
of their own." "A government is representative," said George Cornwall Lewis» 



ments 



l8o FORMS OF GOVERNMENT 

Hereditary Considered from the standpoint of the nature and source 
Elective ^^ ^^^ official tenure, governments may be classified as 
Govern- hereditary and elective. Hereditary government is that 
form in which the source of office is inheritance accord- 
ing to some rule or principle governing the transmission 
of political honors and titles. Elective government is that 
form in which the choice of those who exercise public power 
devolves upon the citizens or rather that portion of them 
who constitute the electoral body. The method of elec- 
tion may be direct, or, as is sometimes said, election in 
the first degree; or it may be indirect, or in the second 
degree. In either case it may be by an electorate consti- 
tuted on the basis of a restricted suffrage or by one on the 
basis of what is popularly designated as universal suffrage. 
With respect to the relation of the executive to the leg- 
islature, governments may be classified as cabinet (the 
terms "ministerial," "parliamentary," and "responsible" 
are sometimes preferred) ; and what, for lack of a more 
suitable term, has been called presidential or congressional 
government. 
Cabinet Cabinet government is that system in which the real 

ment™" executive — the cabinet or ministry — is immediately and 
legally responsible to the legislature or one branch of it 
(usually the more popular chamber) for its legislative and 
administrative acts, and mediately or politically respon- 
sible to the electorate; while the titular or nominal 
executive — the chief of state — occupies a position of 
irresponsibility.^ The members of the ministry are 

"when a certain portion of the community, generally consisting either of all the 
males — or of a part of them, determined according to some qualification of property, 
residence, or other accident — have the right of voting at certain intervals of time for 
the election of particular members of the sovereign legislative body." "Use and 
Abuse of Political Terms," p. 107. 

• Recently the idea has begun to take root in England that the cabinet is im- 
mediately responsible to the electorate and only secondarily responsible to the House 
of Commons. Only on this principle can vi^e explain the resignation of the Balfour 
Cabinet in 1905, at a time when it still retained a large majority in the House of 



OTHER CLASSIFICATIONS i8i 

usually members of the legislature and the leaders 
of the party in the majority, but whether they are mem- 
bers or not, they have the privilege of occupying seats 
therein and of participating in the deliberations/ In 
short, the ministerial office is not incompatible with leg- 
islative mandate. On the contrary, the cabinet system 
presupposes the double character of minister and member, 
and thus executive and legislative functions are inextri- 
cably commingled. " There is," observes Courtenay Ilbert, 
" no such separation between the executive and legislative 
powers as that which forms the distinguishing mark of the 
American Constitution " but the relation is one of inti- 
macy and interdependence.^ The nominal or titular ex- 
ecutive, according to a legal fiction, is incapable of doing 
wrong, in a political sense, and is, as it were, under the 
guardianship of his ministers, who assume the responsi- 
bility for his official acts. Collectively they constitute the 
"government"; they prepare, initiate, and urge the adop- 
tion by the legislature of all the more important legisla- 

Commons. I am indebted to Professor W. J. Shepard for calling my attention to 
this tendency. 

* The English make a distinction between the ministry and the cabinet. The 
ministers — some forty or more in number — are the chiefs of the executive depart- 
ments, among which the administration of the country is divided, including also the 
parliamentary undersecretaries who are not heads of departments. The cabinet, 
on the contrary, is simply " those members of the King's ministry who are sum- 
moned (by the Prime Minister) to attend cabinet meetings " (Ilbert in Redlich's, 
"Parliamentary Procedure," vol. I, p. 13). There are usually some eighteen or 
twenty of these. In a large sense the ministry embraces all the political functionaries 
charged with the direction of public affairs who hold their positions only during the 
existence of the cabinet. From all these a committee called the cabinet is chosen. 
Generally there are a few ministers in charge of departments that have no real exist- 
ence. They are usually experienced statesmen who have been introduced into the 
ministry for the sake of their advice. For different grades of ministers and under- 
secretaries, see Dupriez, "Les Ministres dans les Pays principaux d' Europe et 
d'Amerique," vol. I, p. 36; Todd, "Parliamentary Government in Great Britain," 
vol. I, p. 179; and Duguit, "Droit constitutionnel," pp. 1037-1038. On the office 
of undersecretary of state, see Clavi^res, "Les sous-secretaires d'fitat" (Paris, 1901), 
and Sivian, ibid. (Paris, 1902). 

* Redlirh, " Parliamentary Procedure," I, XII. 



i82 FORMS OF GOVFRNMENT 

tive projects; and from their seats in the legislature they 
defend their poHcies from attack, and when called upon 
must give an account of their official conduct. They are 
the heads of the great administrative departments as well 
as the political chiefs and parliamentary leaders of the 
country, and are charged with administering the laws 
which they propose and have enacted. So long as their 
policies and official conduct command the support of the 
majority of the members of the legislature, or rather of that 
chamber to which they are responsible, they continue to 
hold the reins of office and govern the country. But as 
soon as the legislature manifests in no uncertain language 
its want of confidence in the ministry, through a vote of 
censure or by a refusal to pass its measures, the ministry 
either resigns office in a body or it dissolves the chamber to 
which it owes responsibility, orders a new parliamentary 
election, and appeals to the electorate to sustain it by re- 
turning a new parliament which is in sympathy with its 
policies and acts. If the results of the election are 
favorable to the ministry, it continues in office; if adverse, 
it resigns as soon as the results are fully known or when 
the new parliament has assembled and by positive vote 
has made known its want of sympathy. In a typical 
cabinet system like that of Great Britain the min- 
istry is taken wholly from the ranks of the party having a 
majority in the popular chamber, and thus possesses the 
character of homogeneity. In legal theory the ministers 
are chosen by the nominal or titular executive, though 
where the system of responsibility to the legislature is 
fully developed they are in reality chosen by the legislature, 
and the designation by the chief of state is little more than 
a ceremonial function of investing them with the symbols 
of office.^ The number of ministers is rarely fixed either 

* It is not to be inferred from what is said above in regard to the position of the 
crown under the cabinet system of government that it necessarily plays an insig- 
nificant part. A respected sovereign largely controls his ministers by his influence. 



OTHER CLASSIFICATIONS 183 

by law or by custom, and hence the size of the ministry is 
uncertain and variable, the exact number in any case 
being usually determined by the premier or by executive 
decree. In Great Britain the number {i.e. of the cabinet) 
in recent years has been in the neighborhood of twenty; in 
France, it is now twelve; in Italy, eleven; in Belgium, ten. 

The cabinet system originated in England and was Spread of 
the product of history rather than of invention. From GovSn- 
England it spread little by little to Holland, France, Bel- ment 
gium, Roumania, Sweden, Norway, Denmark, and the 
British Colonies, until it has become, says Esmein, "the 
principal system of government in the world." ^ It has 
made little headway in Germany, however, and none at 
all in Switzerland or North America, and but little in 
Latin America. The cabinet system has received its 
fullest development in Great Britain, and there its work- 
ings have been attended with the most satisfactory results. 

Among the cabinet systems of the continent, that Cabinet 
of Belgium most nearly resembles the British system, menTln 
though the crown plays a more important role in that Beigiua 
country than in England. The responsibility of ministers 
to the king is more real than in England, and he may direct 
and dismiss them with more freedom than the British 
sovereign may.^ As there are generally recognized par- 

If their decisions seem impolitic or dangerous, he is often able to persuade them to 
change their policy. His power to dismiss them and appeal to the people gives 
him a strong defense against their misconduct as well as that of the legislature. 
Such a power is essential to successful parliamentary government. Without it a 
legislature with which the people are no longer in sympathy might not only anni- 
hilate the executive, but impose upon them a government repugnant to their sense of 
right and justice. On the influence of the crown under the cabinet system in 
England, see Bagehot, "The English Constitution," chs. 2 and 3; and Todd, 
"Parliamentary Government," ch. 4. 

^ "Droit constitutionnel," p. in. For discussions of the merits and demerits of 
cabinet government, see Esmein, op. ciL, ch. 5, especially pp. 168-178; Sidgwick, 
"Elements of Politics," p. 443 ff.; Duguit, "Droit constitutionnel," sec. 61; 
Laveleye, "Le Gouvemement dans la Democratic," vol. II, bk. 10, chs. 1-2. 

^ Dupriez, "Les Ministres dans les Pays principaux," vol. I, p. 215. 



lS4 FORMS OF GOVERNMENT 

liamentary leaders, the king rarely has any real choice, 
however, in the selection of his ministers/ In Belgium, as 
in England, ministers without portfolios are sometimes 
appointed as a means of introducing into the government 
eminent persons whose support and experience the gov- 
ernment desires to avail itself of, yet who would hesitate 
to assume the burden of a cabinet portfolio. As in Eng- 
land, ministers are chosen not from the ranks of technical 
administrators, except in the case of the minister of war, 
who is always a soldier and usually an active general, 
but from the members of parliament and from the 
chamber of deputies rather than from the senators. All 
ministers, whether members or not, have full entree into 
either chamber. 
Cabinet Cabinet government was introduced in France by the 

m°eiiThi charter of 1814; it became fully established under the 
France July monarchy, was practically abandoned in 1848, but 
was reestablished with the third republic, though it has 
never attained the success there that it has in England. 
In France there is no incompatibility whatever between 
ministerial office and legislative mandate, and neither law 
nor custom requires a member of parliament appointed 
to the cabinet to resign his seat and seek a reelection, 
as is the rule in England. Custom now requires that all 
cabinet portfolios shall be given to members of parlia- 
ment, though until recently this rule did not apply to 
the ministers of war and marine.^ The English and 
Belgian practice of appointing ministers without port- 
folios has not been followed in France since 1868, though 
undersecretaries are sometimes appointed, there being four 

■ Dupriez, "Les Ministres dans les Pays principaux," vol. I, p. 212. 

'Dupriez, vol. II, p. 336. The present premier, however, in appointing Gen- 
eral Brun to the ministry of war and Admiral de la Payrere to the ministry of 
marine, has returned to the earlier practice of selecting professional military and 
naval commanders respectively for these offices rather than civilians who are mem- 
bers of the legislature. For a good brief review of the French system, see Duguit, 
" Droit constitutionnel," sec. 61; also sec. 144. 



OTHER CLASSIFICATIONS 185 

such at the present time. Ministers are usually regarded 
as being responsible to the chamber of deputies only, 
though the constitutional law of February 25, 1875, ex- 
pressly declares that they shall be solidly responsible to 
the chambers for the general policy of the government and 
individually responsible for their personal acts.^ In legal 
theory they are appointed by the president of the repub- 
lic, but in fact circumstances usually determine who shall 
be members, so that the president has little freedom of 
choice. Owing to the existence of many groups in France 
the task of constructing a cabinet is often one of great 
difficulty. Hardly any single group or coalition of groups 
ever possesses a majority in the popular chamber, and 
it not infrequently happens that there is no recognized 
leader to whom the chief of state may turn and intrust 
the task of constituting the cabinet.^ Under such cir- 
cumstances the premier is sought from the old cabinet 
which has been condemned.^ Consequently it nearly 
always happens that a new cabinet in France contains 
several members of the old one, a condition that almost 
never happens in England, especially when there has been 
a change of parties. The principal difficulty encountered 
in constructing a stable cabinet in France arises from the 
necessity of giving the different groups a sufficient num- 
ber of members so as to satisfy them.^ This requires 

' The view that the ministry is responsible to the senate as well as to the cham- 
ber of deputies is ably maintained by Duguit (" Droit const.," p. 1070), but is 
denied by Esmein (" Droit const.," 4th ed., p. 688). As a matter of fact French 
ministries have on several occasions been forced to resign by the hostile attitude of 
the senate. For a discussion of the particular instances, see Duguit, p. 1073 ; 
Lowell, " Government of England," vol. I, pp. 22 fif. ; and Perrin, " De la Re- 
sponsabilite penale du Chef de I'fitat," etc., p. 45. 

^Compare Esmein, "Droit constitutionnel," pp. 168-178; Dupriez, vol. II, pp. 

337 ff- 

' Dupriez remarks that of the eighteen ministries which ruled France from the 
establishment of the Third Republic down to 1893, seven were presided over by pre- 
miers who were members of preceding cabinets. Op. cit., p. 337. 

* See Dupriez, vol. I, pp. 340-344. 



1 86 



FORMS OF GOVERNMENT 



Cabinet 
Govern- 
ment in 
Italy 



skill and tact, and even when the task is well done such a 
ministry is weak and unstable because it is heterogeneous 
instead of homogeneous. Where there are more than 
two political parties in a state having the cabinet sys- 
tem of government, coalition cabinets, with their tradi- 
tional weakness and instability, are inevitable. They are 
weak and unstable because it is next to impossible for a 
ministry representing such widely different interests to 
pursue a common policy for any great length of time. 
The result is that ministries are short-lived in France 
and cabinet government has not produced satisfactory 
results.* 

In Italy the conditions under which cabinet govern- 
ment is conducted are similar in many respects to those 
prevailing in France. As in France, the chambers are 
always divided into a number of political groups or fac- 
tions, unstable, but sharply differentiated and well-dis- 
ciplined. Under such circumstances it is difficult for one 
man to rally the support of a majority to any measure 
concerning which there is any considerable opposition. 
Enormous difficulties, even more so than in France, are 
consequently encountered in forming a cabinet. Hardly 
any leaders are designated by circumstances as the repre- 
sentatives of public opinion, and hence there is no certainty 
that the ministerial leaders chosen will be able to com- 
mand the support of the chamber on any measure. As 
in France, widely different groups must be given repre- 
sentation in the cabinet, and each must be placated when- 
ever it shows signs of disaffection. Cabinets form.ed 
after long and laborious negotiations, says Dupriez, some- 
times go to pieces over the first question which provokes 



' For a contrary view, however, see an article by J. T. Shotwell, entitled "The 
Political Capacity of the French," in the "Political Science Quarterly," vol. XXIV, 
no. I. Since 1879 there have been no less than thirty-six ministries in France, and 
during the last two decades there have been on an average about two premiers 
everj- year. 



OTHER CLASSIFICATIONS 187 

debate.* The Italian parliamentary system differs in some 
particulars from both those of England and of France. 
In the first place, the action of the chamber in determin- 
ing the selection of the ministers is less than it is in either 
England or France. In Italy the king enjoys a much larger 
freedom and discretion in choosing his ministers, a fact 
which sometimes leads to the "disorganization and confu- 
sion of the parliamentary assembly." In theory the cabi- 
net is responsible to the king and the parliament combined, 
but the parliament, we are told, has "obsequiously sur- 
rendered its powers of control, so that the responsibility 
is now due mainly to the king."^ The ministers are 
generally taken from the chamber of deputies, the 
premier practically always.^ The ministers of war and 
marine are usually army and navy officers respectively, 
and if not already senators, they are made such by 
royal appointment at the time they are chosen to the 
cabinet. Ministers without portfolios are sometimes ap- 
pointed, and since 1888 each minister has had under his 
control an undersecretary, who takes no part in the delib- 
erations of the cabinet, but may represent the minister 
before the chamber and defend the acts of the govern- 
ment.* 

In Germany there exists what may be called ministerial, The 
but not parliamentary, responsible government. Both in g*™^" 
the imperial and state governments ministers are appointed 
by the executive without reference to the political complex- 
ion of the legislature or without regard to the wishes of the 

^ "Les Ministres," etc., vol. I, p. 287. 

^ This is the view of Dupriez (vol. I, p. 287) — a view which seems a little 
extreme. The king, it is quite true, exercises a more important role in the selec- 
tion of ministers than in England, but there are limitations on his choice, and 
strong party leaders, like Giolitti and Sonino, have been practically forced upon 
him. In actual practice, moreover, the responsibility of the ministers is primarily 
to the legislature rather than to the king. 

' Only once since 1848 has the premier been a senator. 

* Dupriez, vol. I, p. 282. 



1 88 FORMS OF GOVERNMENT 

majority. In short, the executive is free to choose whom 
he will. Technical administrative experts who have had 
long experience in the service and have risen by degrees 
to be heads of departments, rather than parliamentary 
leaders or political chiefs, are usually preferred. They 
are not generally required by the constitution to be taken 
from either chamber, though, whether members or not, 
they are given entree thereto with the right of debate. 
They are not chosen exclusively from one or the other 
party, though certain groups are usually recognized in the 
construction of a cabinet, for homogeneity is not consid- 
ered a necessity.* Legally and theoretically they owe no 
responsibility to parliament, but are responsible for their 
acts only to the king or the prince who appointed them.^ 
Their tenure, legally speaking, is dependent upon the royal 
favor and not upon the will of either chamber. The 
policies of state are determined by the king and carried out 
by the ministers, who are theoretically at least the servants 
of the royal will.' Generally, in cabinet governments, 
the role of the cabinet is not determined by positive 
law, but by usage and custom. In Prussia, however, this 
is not the practice. There the relations between king and 
ministers, between the ministers themselves, their con- 
trol over the administration, etc., are all fixed by royal 
ordinances. There is no such ofificer as prime minister 

* Dupriez, vol. I, p. 363. See also Passow, " Die Ministerverantwortlichkeit 
in den deutschen Einzelstaaten." 

* Nevertheless recent events in Germany show a tendency in the direction of 
responsibility to the legislature. Chancellor von Billow's virtual admission on the 
occasion of the publication of the Emperor's interview with an Englishman in 1908, 
that the defeat of the government by the Reichstag would make his resignation a 
practical necessity, was accepted by the liberal leade'-s as an important step in the 
direction of the establishment of ministerial responsibility to the popular chamber, 
and when the chancellor subsequently resigned on the defeat of his budgetarj' 
proposals, the principle was given additional sanction. 

' The Prussian theory and practice in this point is well stated by Bismarck in a 
speech delivered in the Reichstag on Jan. 24, 1882, and quoted in part in Dupriez, 
vo'. I, p. 363. 



OTHER CLASSIFICATIONS 189 

who exercises the power of direction over his subordinates, 
though there is a minister-president who acts as a mod- 
erator during the absence of the king, and who frequently 
presides over the meetings of the cabinet/ 

Cabinet government is most commonly found in ParUa- 
so-called monarchical states, where the conditions most Repu"^ 
favorable to its success are more generally present than ^" 
elsewhere. Nevertheless it is sometimes found in repub- 
lics, particularly those like France, in which monarchical 
traditions are strong. It has also been introduced into 
some of the Latin-American republics, notably Chile, 
Haiti, San Domingo, and Venezuela; but in none of them 
has the system received anything like a perfect develop- 
ment or attained any high degree of success.^ 

Presidential government as contradistinguished from Presiden- 
cabinet or parliamentary government is that form in which enime°nt" 

^ For a comparison of the offices of prime minister in England and minister- 
president in Prussia, see Dupriez, vol. I, pp. 369-370. 

^ Of the twenty-two republics listed in the " Statesman's Yearbook " only the five 
mentioned have governments in which the ministers are responsible to the legislature. 
Only in the United States, Brazil, and Venezuela, however, are the ministerial 
ofBce and legislative mandate incompatible. In all the republics except these three, 
cabinet members have entree into the legislature. In view of the fact that in 
Venezuela ministers may not occupy seats in the legislature, it may be questioned 
whether the cabinet system is really in force there, since the entree of the ministers 
into the chambers is considered by some writers as an essential element in cabinet 
government. Sidney Low, for example, in his "Governance of England," goes to 
the extent of saying that " the root of the whole parliamentary form of government 
is that ministers must be members of parliament." On this subject of cabinet 
government in republics, see the recent work of Carette, "Les Republiques 
parlementaires " (1906). On the subject of parliamentary or cabinet govern- 
ment in general, see Combothecra, " Essai sur le Regime parlementaire " ; Es- 
mein, "Droit constitutionnel," chs. 4 and 5, also an article by the same author 
entitled "Deux formes de Gouvernement," in the " Revue du Droit public et de la 
Science politique," February, 1894; Blauvelt, "Development of Cabinet Government 
in England"; Jenks, "Parliamentary England " ; Dupriez, op. cit.; Lowell, "Essays 
in American Government, " chapter on " Cabinet Responsibility " ; Bradford, 
" Lessons of Popular Government," vol. II, ch. 30; Snow, "Cabinet Government," 
in the "Annals of the American Academy of Political and Social Science," July, 
1892; Todd, "Parliamentary Government in England," vol. I, chs. 2-5; Duguit, 
"Droit constitutionnel," sees. 61 and 144. 



igo FORMS OF GOVERNMENT 

the executive is constitutionally independent of the legis< 
lature as regards his tenure and to a large extent also as 
regards his policies and acts. The executive may be, and 
generally is, responsible to the legislature or one chamber 
of it for certain grave crimes and sometimes even for 
lesser offenses, and may be impeached and upon convic- 
tion be removed from office; but he is politically irre- 
sponsible to the legislature and cannot be removed from 
office except upon impeachment. This is the system 
which prevails in the United States, both in the national 
and local governments, in Switzerland, and in most of the 
Latin-American republics, and in a modified form in Ger- 
many. Where the presidential system prevails, no dis- 
tinction exists between what we have denominated the 
titular or nominal executive and the real or actual execu- 
tive. There are ministers upon whom the chief work of 
the administration devolves, to be sure, but they are not 
members of the legislature and rarely have entree to either 
chamber; they do not assume responsibility for the acts of 
the executive; they are appointed by the executive with- 
out regard to the political complexion of the legislature 
or the wishes of the majority in control of either chamber; 
they are, within the limits of the law, controlled and di- 
rected by the executive and may be dismissed by him at 
will. They arc, in short, the ministers of the executive, 
not of the legislature, administrative chiefs rather than 
parliamentary leaders. They neither prepare, introduce, 
nor advocate before the chambers the adoption of legis- 
lative measures, except in so far as they may do so through 
the agency of members of the legislature who are in 
sympathy with their policies. Votes of censure or of 
want of confidence by the legislature do not affect them, 
and when the legislature refuses to enact the measures 
which they suggest, instead of resigning they continue to 
govern as though they were In complete harmony with 
the majority. It not infrequently happens, of course, that 



ment 



UNITARY GOVERNMENT 191 

they belong to a different political party from that which 
is in control of one or both of the chambers of the legisla- 
ture, in which case the presidential system would break 
down were their tenure dependent upon the support of the 
majority. From this it will be seen that the one feature 
which distinguishes presidential government from the par- 
liamentary or cabinet system is the almost complete iso- 
lation of the executive branch from the legislature, and its 
independence of the same body in respect to its tenure 
and powers.^ 

III. UNITARY, FEDERAL, AND CONFEDERATE GOVERNMENT 

Considered from the point of view of the concentration Unitary 
or distribution of power, governments may be classified as ^°^^''°- 
unitary and federal. If the powers of government are 
concentrated in one supreme organ or organs that are 
located at one common center, and from which all local 
governing authorities derive their existence and powers, 
the government is both unitary and centralized. In such 
a system there is a single common source of authority, and 
hence but one supreme will is exerted. For convenience 
of administration the territory of the state may be sub- 
divided into circumscriptions or districts, in each of which 
a local government may be established and to which certain 
powers of a local character may be delegated by the cen- 
tral government; but so long as the local organizations are 
the mere creations of the central power and exist at its 
will and derive their powers from it and it alone, the gov- 

* For an argument in favor of allowing the heads of departments of the 
United States government seats in Congress and of making them politically re- 
sponsible to Congress, see Bradford, "Lessons of Popular Government," vol. II, 
ch. 30. For an argument against such a proposition, see an article by Freeman 
Snow in the "Annals of the American Academy of Political and Social Science," 
July, 1892. The subject is also discussed by Lowell in his "Essays on Govern- 
ment," chapter on "Cabinet Responsibility." See also Wilson, "Congressional 
Government," ch. 5. 



192 FORMS OF GOVKRNMKXr 

ernmental system is unitary in cliaractcr. These local 
organizations are nothing more than parts of the central 
government, created to act as its agents; in short, they 
have no independent wills of their own. In such a system 
there is no local self-government existing independently 
of the will of the central government, but only such as the 
latter may choose to allow. Examples of such systems 
of government are those of England, France, Spain, Portu- 
gal, Italy, and most of the other states of Europe. In 
none of them do we find a constitutional distribution of 
powers between a central government and a number of 
local governments, each with a constitution and political 
organization of its own creation. There are local gov- 
ernments, to be sure, such, for example, as the counties in 
England, the departments and communes in France, the 
provinces in Belgium and Italy, etc.; but all such govern- 
ments are nothing but the creatures and agents of the 
central authorities and enjoy little or no constitutional 
protection against central interference and control. 
Federal If, on the Contrary, the government of the country is 

distributed by the constitution between a central organiza- 
tion and a number of local organizations, the latter of 
which are not ordinarily the creatures or agents of the 
former, but owe their existence to the general constitu- 
tion in the sense that their spheres are determined by 
it, the government is said to be federal in character. 
Federal government may be defined as a system of central 
and local government combined under a common sover- 
eignty, both the central and local organizations being 
supreme within definite spheres, marked out for them by 
the general constitution. It is dual government as con- 
tradistinguished from unitary government, and implies 
local self-government as opposed to centralized govern- 
ment. It represents a sort of compromise between uni- 
tary government and confederate government. Contrary 
to the principle which underlies unitary government, the 



Govern- 
ment 



FEDERAL GOVERNMENT 193 

local organizations under the federal system are not the 
direct creations of the central government; but in most 
federal systems the reverse is true, that is, the central 
government has been created by the local organizations 
through the act of federation. The territorial areas of 
these local organizations are not therefore mere adminis- 
trative districts, but autonomous and, in a certain sense, 
self-created political communities, having their own con- 
stitutions and political systems. The central and local 
governments are not, however, totally separate and dis- 
connected from each other in organization. Federal gov- 
ernment is not, as is often loosely said, the central 
government alone, but it is a system composed of the 
central and local governments combined. The local gov- 
ernments are as much a part of the federal system as the 
central government is, though neither is subject to the 
control of the other. In most federal systems the com- 
ponent parts participate in the organization of the cen- 
tral government. In the German Empire and the United 
States, for example, the upper chambers of the national 
legislature are composed of members chosen by a branch of 
the state government rather than by the people. Thus a 
connecting link between the central and local governments 
is established, which serves to minimize the tendency to 
mutual jealousy and to strengthen good feeling between 
them.^ 

The principle upon which the powers of government are Distnbu- 
distributed between the central and local organizations in a po°e° s in 
federal system is, that those affairs which are of common a Federal 
interest to all the component parts of the federation and 
which require uniformity of regulation should be placed 
under the control of the central government, while all 
matters not of common concern should be left to the care 

*This was dwelt upon by Hamilton in "The Federalist," No. 62. See also 
Haynes, "The Election of Senators," pp. 12-13; and Sidgwick, "Elements of Poli- 
tics," p. 535. 

POL. SCI. — 13 



194 FORMS OF GOVERNMENT 

of the local governments.* In short, there should be one 
government for national affairs and a number of local gov- 
ernments for local affairs. In respect to the former, there- 
fore, federal government resembles unitary government, 
while in respect to the latter it is more like confederate 
government. Opinions differ, however, as to what affairs 
require uniformity of regulation and what should be left 
to local regulation, and hence the line of separation between 
general and local matters is in practice drawn differently 
in different federal systems. In most states having the fed- 
eral form of government, however, such affairs as foreign 
relations and international intercourse, war and peace, 
interstate and foreign commerce, coinage of money, patents 
and copyrights, have been placed under the control of the 
central government. In international relations the local 
governments are non-entities and are officially unknown, 
though, as will be pointed out later, they have shown them- 
selves able in certain instances to interpose obstacles in the 
way of the successful prosecution of a common foreign 
policy by the central government.^ In the more recently 
established federal systems of Europe and Latin-America 
the notion of what requires uniformity of regulation and 
what will permit of variety of control is somewhat differ- 
ent from that which has prevailed in the United States, and, 
consequently, the principle of distribution has been differ- 
ent. In these states many affairs are treated as being of 
general interest and hence requiring uniformity of regula- 

' Compare Dicey, "Law of the Constitution," p. 131; and Freeman, "History of 
Federal Government," pp. 3-4. It may be noted in this connection that in Ger- 
many the division of powers between the imperial and state governments is not the 
same in the domains of legislation and administration. In legislative matters the 
competence of the Empire is much wider than it is in regard to administration 
since the execution of the imperial laws devolves for the most part upon the 
governments of the individual states, as was pointed out in the preceding chapter. 

^ In Germany and Switzerland, on the contrary, the local organizations have a 
limited power of foreign intercourse, and some of the German states also retain 
the right of coinage. 



FEDERAL GOVERNMENT 1 95 

tion, which in the United States are left to local regulation. 
Thus, in Canada and the German Empire the whole body 
of civil, criminal, and commercial law and the law of pro- 
cedure, as well as the law of marriage and divorce, is 
national, not local ; that is, instead of separate and widely 
varying legal systems in these domains, there is a single 
uniform code for all the component parts of the empire. 
The evils that have arisen in the United States in conse- 
quence of the extraordinary variety of legislation, espe- 
cially in respect to certain businesses and occupations that 
are really national in scope rather than local, have recently 
aroused discussion in many quarters in favor of increasing 
the powers of the national government along various lines.* 

Two methods have been followed in distributing the pow- Methods 
ers of government between the central and local organiza- uting the" 
tions, where the federal system prevails. In most such Powers of 
states the powers intrusted to the central government are ment 
specifically enumerated. To the local governments are 
reserved all the remaining powers except such as may be 
specifically prohibited. The central government is thus 
an authority of delegated powers, while the local govern- 
ments are authorities of residuary powers. In other words, 
the competence of the central government is positively 
determined by the constitution, while that of the local 
governments is negatively determined. The presumption 
of law in case of doubt, therefore, is against the existence 
of any power claimed by the central government and in 
favor of any power claimed by the local governments. In 
the federal system of Canada, however, a somewhat differ- 
ent principle of distribution prevails. There the local 
governments are authorities of delegated powers, while the 
central government is one of both delegated and reserved 
powers.^ Whatever may be the method or principle of 

' See an address by Elihu Root entitled " The States, how to Preserve them." 
* British North America Act, sees. 91-92; Munro, "Government of Canada," 
especially chs. 22 and 23. 



196 FORMS OF GOVERNMENT 

distribution, or the nature and extent of power delegated 
or reserved to either government, neither may enlarge 
its competence or distribute the powers of government 
differently from the way in which they have been distrib- 
uted by the constitution. Only the sovereign itself can do 
that. In some federal systems, however, the central gov- 
ernment is given a limited control over the organization 
and acts of the local governments. Thus, in the United 
States it is made the duty of the national government to 
see that only republican governments shall be maintained 
by the individual states, from which it may be inferred 
that the national government may prohibit such local or- 
ganizations as may not in its judgment conform to this 
requirement. In Canada the Dominion government has 
the power to disallow the acts of the provincial legislatures; 
likewise in the federal republic of Venezuela the national 
government may veto the acts of the local legislatures. 
Both in Germany and Switzerland the central authorities 
have a sort of jus suprema inspectionis over the operations 
of the local governments, especially when they are charged 
with carrying out the acts of the central government. In 
the German Empire the imperial government may by the 
process of federal execution compel a delinquent or recalci- 
trant member of the empire to perform its obligations to the 
empire. 

Confederate government is that form of government in 
which, as to territory and population, the state is coexten- 
sive in its own organization with the organization of the lo- 
cal government.^ In a confederate system, as in the federal 
system, there is a central organization ; but instead of a sin- 
gle sovereignty there are as many sovereignties as there are 
local governments. The central government is merely the 
agent of the states composing the confederacy, and its juris- 
diction is limited to a very few concerns. In operation its 
commands extend, as has been said, not to the individ- 

' Burgess, op. cU., vol. II, p. 6. 



BUREAUCRATIC VERSUS POPULAR GOVERNMENT 197 

uals who Inhabit the confederacy, but are addressed to 
the confederated states themselves and reach the indi- 
viduals for whom they are intended only mediately and 
indirectly, through the medium of the state organizations. 
A confederacy in reality has no citizens or subjects who 
owe it direct and immediate allegiance. Its jurisdiction 
generally includes only such matters as relate to foreign 
relations, defensive war, and possibly a few matters of an 
interstate character. Usually it possesses no power over 
the sources of its own revenue supply, but is dependent 
upon the voluntary contributions of the confederated states. 
Finally, it lacks stability and permanence, and its existence 
is precarious, since it belongs to the component members 
to withdraw from the confederation at will or refuse to be 
bound by its acts and resolutions. It is a transitory form 
of political organization which usually develops into the 
federal system or dissolves into its constituent elements. 

IV. BUREAUCRATIC VERSUS POPULAR GOVERNMENT 

From the standpoint of the organization and spirit of Bureau- 
the administrative service, governments may be classi 
iied as bureaucratic and popular. A bureaucratic govern- ^^^^ 
ment is one which is composed of administrators especially 
trained for the public service, who enter the employ of 
the government only after a regular course of study and 
examination, and who serve usually during good behavior 
and retire on pensions. Under such a system the govern- 
mental service acquires the character of a profession, its of- 
ficials are subject to a rigid discipline, and they tend to 
acquire an esprit de corps somewhat similar to that found 
among the soldiers of a regular army. They devote their en- 
tire time to the discharge of their public duties and have no 
other occupation.^ They therefore tend to become a class 

'Compare Goodnow, "Comparative Administrative Law," vol. II, p. 8; and 
Bagehot, "The English Constitution" (American ed.), pp. 260-266. Strictly 



cratic 
Govern- 



198 



FORMS OF GOVERNMENT 



Merits of 
the Bu- 
reaucratic 
System 



apart from the rest of the population, possessing different 
ideals and interests. In a large measure such government is 
irresponsible to the people, and is little affected by public 
opinion — it is, in short, very largely a government of 
men rather than of laws. It is marked by an excessive 
formalism, is inclined to parade and pomp, and has a ten- 
dency to overemphasize administrative routine rather than 
conditions and principles — in short, it tends, as Burke 
remarked, to think more of forms than of substance. The 
most extreme example of a bureaucracy which the world 
has seen in modern times, perhaps, was that which existed 
in Prussia from 1720 to 1808. A bureaucracy of a less 
absolute character was that which existed in France under 
Napoleon for a time after 1808. In varying degrees of 
development it exists to-day in all the so-called monarchi- 
cal states of Europe, especially in Prussia and Russia, and 
to a less degree in England. Commonly thought of only 
in connection with monarchical states, its forms and meth- 
ods, and to some extent its spirit, are, nevertheless, found 
in the governmental systems of many republican states as 
well.^ 

The chief merit of bureaucratic government is that 
it represents high skill and ability. Its officials are spe- 
cially trained for the public service. It is thus more efn- 
cient than popular government; and if skilled, efBcient, and 
economic administration were the only or the main end of 
government, little fault could be found with such a system. 
"It accumulates experience," says John Stuart Mill, "ac- 
quires well-tried and well-considered traditional maxims 

speaking, the distinction between bureaucratic and popular government is not so 
much one of form as of spirit, but I have treated it in this chapter through consid- 
erations of convenience rather than of logic. 

* On bureaucratic government, see Brater and Bluntschli, "Deutsches Staats- 
worterbuch," vol. II, pp. 293-297 (art. " Bureaukratie") ; Goodnow, op. cit., vol. 
II, pp. 8-9; Mill, "Representative Government," pp. 109-110; Block, "Diction- 
naire de la Politique," vol. I, pp. 271-275; and Bachem, " Staatslexikon," vol. I, 
pp. 1070-1078. 



BUREAUCRATIC VERSUS POPULAR GOVERNMENT 199 

and makes provision for appropriate practical knowledge 
in those who have the actual conduct of affairs." * 

But as we have attempted to show, efficiency of adminis- its 
tration is not the sole end to be attained in any govern- ^^^^<=*^ 
mental system. The education of the people in political 
matters, the stimulation of popular interest in public affairs, 
and the cultivation of loyalty and patriotism on the part of 
the masses should be among the important aims of every 
political system, and this cannot be accomplished by the 
bureaucratic system. It is not favorable to the develop- 
ment of patriotism, self-reliance, or loyalty. Moreover, it 
is not without defects inherent in its own nature. "The 
disease," said Mill, "which afflicts bureaucratic govern- 
ments and of which they die is routine. They perish by 
the mutability of their maxims and still more by the 
universal law that whatever becomes a routine loses its 
vital principle." Such a government, he said, tends to 
become a "pedantocracy." It is the only government, 
some one has remarked, for which the philosopher can find 
no defense.^ 

Contradistinguished from bureaucratic government is Popular 
popular government, that is, government by persons ^°''"^- 
drawn at regular intervals from the ranks of the people, 
who after a brief service return to the private walks 
of life. Generally they are without special training; not 
infrequently they serve without pecuniary compensation; 
and often they are during the term of their public service 
engaged in other occupations. Under such a system most 
of the offices are open to all without preliminary prepara- 
tion or examination; few or no professional qualifications 
are required, and the official class never develops a caste 
system or loses touch with the people. The officers are 
more or less influenced by public opinion, and in the dis- 

* "Representative Government" (Universal Library edition), p. 109. 
' Ibid., p. no. See also F. Rohmer, "Deutschlands alte und neue Bureau 
kratie"; also article " Bureaukratie" in Brockhaus, " Konversations-Lcxikon." 



ment 



2CX) 



FORMS OF GOVERNMENT 



Individu- 
alistic 
Govern- 
ment 



Paternal 
Govern- 
ment 



charge of their duties are more often subject to legislative 
than administrative control. 

Finally, from the point of view of their functions and 
sphere of activity, governments may be denominated as 
individualistic and paternal.^ A government of the former 
type is one whose activities are limited mainly to the simple 
police functions of maintaining the peace, order, and se- 
curity of society and the protection of private rights. A 
paternal government is one whose functions are not lim- 
ited merely to restraining wrong-doing and the protection 
of private rights, but which goes farther and endeavors to 
promote by various means the social well-being of the 
people. It undertakes to perform for society many 
services which might be performed as easily through pri- 
vate initiative, on the ground that they can be more effi- 
ciently and economically done by the government than by 
private individuals. Such a government may own and 
operate various industries, conduct businesses like insur- 
ance, provide pensions for the old, the sick, and the infirm, 
and in various ways care for the social interests of the 
people. 



Govern- 
mental 
Trans- 
forma- 
tions 



V. SUCCESSION OF GOVERNMENTAL FORMS 

No state has retained the same form of government 
throughout its whole history. Governments, like living 
beings, are constantly changing their forms so as to adapt 
themselves to the altered conditions of a new environment. 
Thus, Athens was first ruled by kings, then by an aristoc- 
racy, later by tyrants, then by a democracy, and finally 
again by kings. So Rome went through a circle of politi- 
cal transformations. It began as a city kingdom, then it 
became a republic, and finally an empire ruled by Caesar. 
The government of France within half a century passed 

* What was said above in regard to the distinction between bureaucratic and pop- 
ular government and the reason for treating the subject here applies equally to the 
distinction between individualistic and paternal government. 



Ideas as 
to the 



SUCCESSION OF GOVERNMENTAL FORMS 201 

through the forms of an absolute monarchy, a republic, 
an empire, a kingdom, again a republic, again an empire, 
and for the third time a republic. 

Many of the early writers undertook to reduce the succes- Early 
sive transformations through which governments pass to 
a regularly ordered sequence or rule of general application. Order of 
There existed in early times a popular belief that there was sion 
a natural order of political development through which all 
states must pass in the course of their history. Plato, for 
example, taught that the natural course of evolution was 
from aristocracy, the rule of the best, to timocracy, the rule 
of the military, then to oligarchy, then to the rule of the 
mob, and finally to tyranny.^ Aristotle, while differing 
from Plato as to the order of development, nevertheless 
believed that forms of government followed one another 
according to a regular order of succession. According to 
his rule the state began as a hereditary monarchy, which in 
time passed into an aristocracy. The latter in the course 
of time became an oligarchy, the oligarchy became a tyranny, 
and the latter ultimately passed into a democracy. Ordi- 
narily after an unsatisfactory experience with democracy a 
monarchy would be reestablished, and the cycle thus begun 
again would be passed through as before.^ Polybius taught 
that in the beginning the strongest person physically in the 
state ruled, that is, the state began originally as a mon- 
archy. Then followed a period when justice rather than 
physical power became the basis of the right to rule, dur- 
ing which time a form of government called by Polybius 
"royalty" (Basileia) prevailed. This form in time de- 
generated into tyranny, only to be overthrown c\"cntually, 
and an aristocracy set up in its place. This in the course 
of time was succeeded by oligarchy, which in turn was over- 
thrown by the people and a democracy was established.' 
Machiavelli laid down almost the same rule regarding the 

> "The Republic," bk. VIII. ^ gee his "Politics," bk. VI. 

' Livius, vol. I, p. 2. 



202 



FORMS OF GOVERNMENT 



Schleier- 
macher's 
Theory 



order of natural succession in respect to the political forms 
of ancient states. 

The noted German scholar Schleiermacher asserted that 
political transformations are determined largely by the 
spread of political self-consciousness. At first, he said, 
political consciousness was not highly developed in any 
minds, though diffused equally among the masses. The 
democratic form of government naturally corresponded 
to this condition and was therefore the first state form. 
In the course of time a higher state consciousness devel- 
oped and concentrated itself in a few minds. This led 
to the establishment of aristocracy. Finally the state 
consciousness concentrated itself in a single individual, 
and monarchy, the highest form of state, succeeded.^ 
There is a residuum of truth in the principle of Schleierma- 
cher's law, but the weight of opinion is against the order in 
which he conceived political consciousness to have spread. 
It is more reasonable to believe that it existed at first in 
but one or at best only a very few minds, and that it grew 
and spread slowly and became diffused throughout the 
mass of the population rather late in the life of the state. 
It seems more probable, therefore, that the order of suc- 
cession was the reverse of that which Schleiermacher laid 
down ; that is, the state began with a monarchical form of 
organization, which in time became aristocratic, and 
finally, when political consciousness became general, the 
organization of the state became democratic. History, 
indeed, shows that this has generally been the order of 
development.^ 



* Seehis" Uber die verschiedenen Staatsformen." For a criticism of Schleierma- 
cher's doctrine see Bluntschli, " Politik," pp. 309 ff. 

^Compare Batbie, "Traite de Droit public et administratif," vol. I, ch. 35. 
This author considers at length the succession and kinds of state forms and shows that 
generally, though not always, of course, monarchy, aristocracy, and democracy have 
followed each other in the order mentioned. The necessities of self-defense give 
rise, he says, to the first form of political organization, namely, a military monarchy. 
After the struggle which has produced it is over, the organization becomes aristo- 



SUCCESSION OF GOVERNMENTAL FORMS 203 

Bluntschli, a critic of Schleiermachcr, held that the Biunt- 
normal forms of government succeeded each other in the Theory 
following order: first, theocracy; second, monarchy; 
third, aristocracy; and fourth, democracy; while the 
abnormal forms succeeded each other in the following order: 
hierarchy, tyranny, oligarchy, and ochlocracy. Each of 
these forms not infrequently passed through several trans- 
formations. For example, monarchy began in its pure 
form, then it became aristocratic {stdndische) in char- 
acter, and finally, democratic. Republics likewise passed 
through monarchical, aristocratic, and democratic stages.* 

Regarding the merits of the rule laid down by the early No Law of 
writers in respect to the succession of state forms, there can inPomT-°° 
be but one conclusion, namely, that such changes do not cai Trans- 
follow each other in accordance with any law such as reigns tions 
in the physical world. History furnishes abundant evi- 
dence of this truth. For example, the early monarchies 
did not always pass into tyrannies, but often the latter 
resulted from strife among the leaders of an aristocracy. 
Not infrequently monarchies have been transformed into 
democracies, aristocracies into monarchies, and democracies 
into aristocracies. Bodin, in his treatise on the republic, 
gives numerous historical examples of such transforma- 
tions. In modern times monarchies have more often 
been succeeded by democracies than by aristocracies. 
During the sixteenth and seventeenth centuries in many 
states of Europe monarchical governments of an abso- 
lute type were erected upon the ruins of feudal aris- 
tocracies. A study of the subject indeed will show that 
the exceptions are more numerous than the rule. There 
are, of course, certain laws of political evolution, but no 
such sequence of succession as was described by the early 
writers. Not all states have passed through the same stages 

cratic. Finally the masses demand and obtain a share in the management of 
public affairs, and the government becomes democratic in organization. 

' "Politik," pp. 310-312; see also his " Allgemeine Staatslehre," bk. IV, ch. 10. 



204 FORMS OF GOVERNMENT 

or undergone the same transformations. The changes 
that have occurred in some have been the result of internal 
revolution, in others the result of conscious adoption or 
imitation, Woolsey justly remarks that if there were such 
a law of succession as described by Polybius, it would 
afford a most hopeless prospect to the world/ It would, 
in short, mean the reign of fatalism and of death in the do- 
main of politics. 

' "Political Science," vol. I, p. 469. See also Leacock, "Elements of Political 
Science," pp. 46-47; Rousseau, "Contrat social," bk. Ill, ch. 11; and Laveleye, 
" Le Gouvernement dans la D^mocratie," bk. V, ch. 2. 



Form 



CHAPTER VII 

FORMS OF GOVERNMENT (Continued) 

MERITS AND DEMERITS 

I. MONARCHICAL GOVERNMENT 

From a consideration of the various forms of govern- Antiquity 
ment, from the standpoint of their structural organization, yer^gJJuy 
we come next to consider, in the light of reason and experi- °^ ^^^ 
ence, the elements of strength and weakness of each. Of chicai 
all the types considered, the oldest and most widely dis- 
tributed is the so-called monarchical form. It has existed 
from the earliest times and is to-day universal in Asia and 
nearly so in Europe. Until the latter part of the eight- 
eenth century it was widely believed to be the nearest 
approach to a perfect form of political organization that 
could be devised by the ingenuity of man. Of its merits 
the English philosopher and historian David Hume wrote 
near the middle of the eighteenth century: "Though all 
kinds of government be improved on in modern times, yet 
monarchical government seems to have made the greatest 
advance to perfection. It may now be affirmed of civilized 
monarchies, what was formerly said of republics alone, 
that they are a government of laws, not of men. They are 
found susceptible of order, method, and constancy to a sur- 
prising degree. Property is there secure; industry is 
encouraged ; the arts flourish ; and the prince lives among 
his subjects like a father among his children." * And, he 
adds, there are more "sources of degeneracy" to be found 
in free governments like England than in France, which was 
then, in Hume's estimation, "the most perfect model of 
pure monarchy," a judgment which Sir Henry Maine pro- 

* "Essays," no. 12, entitled "Of Civil Liberty." 
205 



2o6 



FORMS OF GOVERNMENT 



Absolute 
V. Limited 
Monarchy 



Merits of 
Absolute 
Monarchy 



nounces to be quite lacking in the essential element of 
truth/ "All the world," said Bossuet, "began with mon- 
archy, and almost all the world has been preserved by it in 
the most natural state." It has its foundation, continued 
the same writer, in the paternal empire, that is, in nature 
itself.' 

In judging of the merits of monarchical government we 
must distinguish between the two forms in which it mani- 
fests itself ; namely, that form in which the monarch is both 
sovereign and executive, and that form in which he is execu- 
tive only, and usually only titular executive at that. In 
the former the whole power of government, the whole 
source of authority, is in the hands of a single person, 
however numerous may be his subordinates. 

In favor of this form of government may be mentioned 
the elements of strength, vigor, and energy of action, unity of 
counsel, promptness of decision, and simplicity of organiza- 
tion.^ "Where such a system prevails," said Rousseau, 
"the will of the people and the will of the prince, the public 
force of the state and the individual force of the government, 
all respond to the same motive power ; all the springs of the 
machine are in the same hand, all look to the same end. 
There are no opposing movements which destroy each other, 
and no sort of constitution can be imagined in which a slight 
effort produces greater action." Rousseau goes on to 
compare a skillful monarch governing his people throughout 
a vast state and making everything move while seeming 
himself immovable, to an engineer seated tranquilly on the 
shore of a sea and setting in motion without difficulty a 
huge vessel upon the waters.^ 

* "Popular Government," p. 4. 

' Quoted by De Parieu, " Principes de la Science politique," ch. 2, p. ^^. 

' "Of all systems of government," says Pradier-Fodere, "monarchy is the most 
simple, its action the most prompt and most energetic, and it has been adopted by the 
greatest number of nations." "Principes generaux de Droit de Politique," etc., 

P- 243- 

* "Contrat social," bk. Ill, ch. 6. 



MONARCHICAL GOVERNMENT 207 

In the early stages of civilization monarchy is undoubt- its Place 
edly well adapted to the needs of a people who have not yet tf^e^s^j 
developed a high political consciousness and who therefore cieties 
lack the capacity themselves for participating actively in 
the management of public affairs. Perhaps no better form 
could be devised for disciplining uncivilized peoples, leading 
them out of barbarism and inculcating in them habits of 
obedience. John Stuart Mill has well remarked that "des- 
potism is a legitimate mode of government for dealing with 
barbarians, provided the end be their improvement and the 
means be justified by actually effecting that end. "Lib- 
erty," he observes, "as a principle, has no application to any 
state of things anterior to the time when mankind have 
become capable of being improved by free and equal discus- 
sion. Until then there is nothing for them but implicit 
obedience to an Akbar or a Charlemagne, if they are so for- 
tunate as to find one." ^ The absolute monarchies of the 
medieval and early modern times justified their existence 
through their work of consolidation and nationalization. 
Popular government could make no headway until prov- 
inces were consolidated into kingdoms, classes and races into 
nations, and conflicting jurisdictions were unified. It was 
the mission of absolute monarchy to establish the sover- 
eignty of the national state in the place of the rival author- 
ities of the church, of feudalism, of free cities, and of other 
obstacles which stood in the way of the development of the 
modern state. No other agency than absolute monarchy 
could have wrought out so important a result and thus 
paved the way for constitutional government. 

But when all is said that can be said in favor of the pure Objection: 
monarchical form of government, the fact remains that it is fut^Mon- 
absolute government; that is, government in which the ^rchy 
people for whose protection and benefit governments are 
instituted have no share. Having exhausted its mission, its 
raison d'etre no longer exists. It is government organized 

» " On Liberty," p. 23. 



2o8 FORMS OF GOVERNMENT 

and administered by a single person according to his own 
sense of what is best and right for those over whom he reigns, 
and history abundantly confirms the truth of the assertion 
that such governments have more often been administered in 
the interests of the monarch himself than in the interests of 
his subjects/ "It has long been a common form of speech," 
says John Stuart Mill, "that if a good despot could be in- 
sured, despotic monarchy would be the best form of 
government." ^ But, as he goes on to remark, it is a most 
"pernicious misconception of what good government is." 
Assuming for the sake of argument that absolute power in 
the hands of one individual would never be abused, but on 
the contrary would insure a virtuous and inteUigent admin- 
istration of the government; granting that good laws would 
be enacted and enforced, that justice would be dealt out to 
all, that the public revenues would be wisely and judi- 
ciously expended; in short, that the despotism were the 
wisest and most benevolent conceivable, there are still 
other considerations which render it far from being the ideal 
polity. Administrative efficiency is only one of the tests 
of a good government. No government which does not 
rest upon the affections of the people, which does not 
stimulate among them an interest in public affairs and 

* Compare Sidgwick ("Development of European Polity, " pp. 412-413), who re- 
marks that it is not only a defect of monarchy in the sense in which we are here con- 
sidering it, that the supreme lawmaking power is in the hands of a single individual, 
who may or may not employ it in the interests of the community, but that the execu- 
tion of the laws being under the supreme control of the same person, there is no suffi- 
cient guarantee that he will observe his own laws, if passion or favor urges him to break 
them. See also George Cornwall Lewis, " Government of Dependencies," p. 20. 

""Representative Government," ch. 3. "The tendency of all monarchy," 
declares Lord Brougham, " is towards despotism and its evils; and a constitutional 
monarchy which provides no checks, that is, a pure monarchy, has enormous de- 
fects, even if it should not degenerate into an Oriental despotism. It leaves too great 
scope to the sovereign's interests or passions, benefits the people very little by the 
alliance he always forms with the nobles, gives facilities to humor his ambition by 
wars, allows reckless extravagance of every kind, encourages habits of costly ostenta- 
tion and of pride towards inferiors, and begets a spirit of fawning and truckling 
towards those in authority." "The British Constitution," Works, vol. XI, p. 3. 



MONARCHICAL GOVERNMENT 209 

create an active, intelligent, and alert citizenship, can be 
called ideal; and, certainly, no government from which the 
participation of the people in some form is excluded will 
ever be able to produce such a body of citizens.^ 

The merits and demerits of the second type of monarchy, Merits of 
that is, the form of monarchy in which the reigning prince M^archy 
is not sovereign, but merely an organ of government, are 
mainly, though not wholly, those which are associated with 
the principle of hereditary tenure in the organization of the 
executive. It is this principle which mainly distinguishes 
the so-called constitutional monarchy to-day from the repub- 
lic. About all that can be said in favor of the hereditary 
principle is that it tends to secure an uninterrupted and 
orderly succession in the executive office without the 
recurring dangers and inconveniences, the tumults and dis- 
orders, which are almost inseparable from the method of 
popular choice.^ It also tends to promote continuity of 
executive polity in the conduct of the government. The 

' Cf. Goodnow (" Comparative Administrative Law," vol. II, p. 10), who goes to 
the length of saying that " the prime end of all governmental systems should be the 
cultivation in the people of a vigorous political vitality, a patriotic loyalty, and 
social solidarity." 

* For a good discussion of the advantages of the hereditary monarchy, see Sidgwick, 
" Elements of Politics," pp. 437-442. Compare the Marquis of Argenson, who said, 
"The right of succession to the crown is a method universally adopted to avoid the 
horrible inconveniences of election." " Considerations sur le Gouvernement," 
p. 108. A strong advocate of the hereditary monarchy was Dr. Paley, who declared 
that it was universally to be preferred to an elective government. "Nor should it 
be forgotten among the advantages of an hereditary monarchy," he said, "that as 
plans of national improvement and reform are seldom brought to maturity by the 
exertions of a single reign, a nation cannot attain to the degree of happiness and 
prosperity to which it is capable of being carried unless a uniformity of counsel, a 
consistency of public measure and designs be continued through a succession of 
ages. This benefit may be expected with greater probability where the supreme 
power descends in the same race, and where each prince succeeds, in some sort, to 
the aims, pursuits, and dispositions of his ancestors, than if the crown, at every 
change, developed upon a stranger whose first care would commonly be to pull 
down what his predecessor had built up ; and to substitute systems of administration 
which must in their turn give way to the more favorite novelties of the next succea- 
sor." "Political and Moral Philosophy," p. 215. 
POL. SCI. — 14 



2IO 



FORMS OF GOVERNMENT 



inherent weakness in the hereditary principle is that it 
affords no guarantee that a strong, vigorous, or trained per- 
son will succeed to the office, but allows the choice to be 
determined by the accident of birth. Thus, as a method for 
securing fitness and character in the executive office it has 
no merits. To intrust one man with the government of 
the people, not because he is the wisest or the best, but be- 
cause he is the son or heir of another person, as a principle 
of politics has little to commend it. History affords 
numerous examples of immature, feeble-minded, and in- 
competent rulers succeeding to thrones under the operation 
of such a principle. France, for example, was governed 
for more than five hundred years by kings who had not 
reached the age of twenty-five years at the time of their 
accession to the throne, and for nearly one hundred years by 
kings who had not attained the age of twenty-one.^ 



Forms 
of Aris- 
tocracy 



II. ARISTOCRATIC GOVERNMENT 

In order to form a proper estimate of the merits and 
demerits of aristocratic government we must distinguish 
between the several forms under which it manifests itself. 
There are or have been, as we have seen, aristocracies of 
birth or family; aristocracies of wealth, and these may be of 
two kinds; aristocracies of culture and education; aristocra- 
cies of elder statesmen ; priestly and military aristocracies ; 

* Sismondi," Etudes sur les Constitutions des Peuples libres," quoted by Woolsey, 
"Political Science," vol. I, p. 521. "No race of kings," said Jefferson, "has ever 
presented above one man of common sense in twenty generations." " There is not a 
crowned head in Europe whose talents or merits would entitle him to be elected a 
vestryman by the people of any parish in America." Later n life he was inclined to 
concede that under certain conditions a monarchy might really be the most desirable 
form of government. Merriam, "American Political Theories," pp. 153-154. 
For further literature on the merits and demerits of monarchy as a form of govern- 
ment, see Treitschke, "Politik," vol. II, sec. 15; Bluntschli, "Po'itik," bk. VII; 
De Parieu, " Principes," etc., ch. 2; Paley, "Political and Moral Philosophy," bk. 
IV, ch. 6; Wood, "Government of the State," pp. 126-133; Pradier-Fodere, 
''Principes generau.x de Droit de Politique et de Legislation," p. 243; Roscher, 
'Politik," pp. 27-32; Montesquieu, "Esprit des Lois," bk, V, ch. 11. 



ARISTOCRATIC GOVERNMENT 2H 

natural and artificial aristocracies ; etc/ Manifestly they do 
not all possess the same virtues or the same vices, nor the 
same elements of strength or of weakness. Whatever may 
be the method or basis of classification or the form which 
aristocracy may take, the general political principle is the 
same, namely, that aristocratic government is government 
by a comparatively small portion of the population. If as a 
form of government it meant what the etymological deriva- 
tion of the word implies, it would, as De Parieu remarks, 
undoubtedly be the most perfect as well as the most widely 
prevalent kind of government in the world. ^ Interpreted 
in the sense of the best, it is the government par excellence, 
the only government in fact which can be defended on 
sound and rational principles. It ought to be readily 
granted by all that only the good should govern ; but, as 
Seeley observes, if "good" is only a euphemistic name, 
meaning simply a quality possessed by the wealthy or 
well-born, then aristocracy is only a euphemistic name 
for oligarchy, which is itself a perverted or "diseased" 
form of aristocracy.^ The Greek notion of aristocracy was 
that of government by the "best," not necessarily by the 
wealthy or powerful. Originally it was one of the most should 
respected, as it was one of the most widely distributed, of confused 
all forms of political organization ; but in recent years the with on 
name has come to have an unsavory if not a disreputable ^^^'^ ^ 
ring about it.^ The ancient writers like Aristotle, as has 
been said, carefully distinguished between aristocracy, 
which they defined as government by the "best," and 
oligarchy, which they described as government by a 
wealthy minority in their own interest.'^ But with modern 

* Bluntschli, "Allgemeine Staatslehre," bk. VI, ch. 19; Rousseau, "Contrat 
social," bk. Ill, ch. 5 ; Jefferson's Works, vol. IX, p. 425. 

^ "Principes de la Science politique," p. 56. 

^ "Introduction to Political Science," pp. 323, 331. See also Lewis, " Use and 
Abuse of Political Terms," pp. 72-74. 

'' Compare Sidgwick, "Elements of Politics," p. 608. 

•Aristotle, "Politics," IV, 7; IV, 14; V, 6. 



212 



FORMS OF GOVERNMENT 



Aris- 
tocracy 
empha- 
sizes Qual- 
ity; it is 
Conserva- 
tive 



notions concerning government by the few the distinction 
has largely disappeared, so that aristocracy has come to 
possess the same disagreeable meaning which the ancients 
associated with oligarchy. In short, the two, as forms of 
government, are now regarded as substantially the same. 

One of the distinguishing characteristics of aristocracy 
is that it emphasizes quality rather than quantity, charac- 
ter rather than mere numbers.^ \lt assumes that some are 
better fitted to govern than others, attaches great weight 
to experience and training as political virtues, and seeks 
to reward special talent and attract it into the public 
service. It is preeminently conservative government; it 
honors authority, especially when it has had the sanction 
of long acquiescence, and has great reverence for long- 
established custom and tradition. It strikes its roots deep 
in the past and distrusts innovation, especially when it would 
lay violent hands upon institutions which have become ven- 
erable with age. Where it is associated with monarchy and 
democracy, it acts as a tempering and restraining element. 
It curbs the passions of democracy and holds in check the 
absolute tendencies of monarchy.^ In this sense it is, said 
Lord Brougham, a necessary part of a governmental system, 
since " nothing else can protect liberty from an arbitrary 
sovereign or from the more insupportable tyranny of the 
irresponsible multitude."' The very soul of it, said 
Montesquieu, is moderation founded on virtue. It pos- 
sesses an inherent vigor, he declared, unknown to democ- 
racy.* Naturally jealous of its exclusive privileges and 



* Compare Bluntschli "Politik," p. 282. 

' Compare De Parieu, " Principes de la Science politique," pp. 59-60. 
^ "Works," vol. XI, p. 20. That aristocracy is not incompatible with liberty 
Milton asserted in " Paradise Lost " : 

" If not equal all, yet free. 
Equally free ; for orders and degrees 
Jar not with liberty, but well consist." — Bk. V, 791-793" 



* "Esprit des Lois," bk. Ill, ch. 4. 



ARISTOCRATIC GOVERNMENT 213 

fearful of its own security, it has every reason for refraining 
from an unwise and immoderate use of its power. Thus 
it avoids rash political experiments and advances only by 
cautious and measured step.^ If the principle of selection 
were always that of genuine merit, it is difficult to see 
what could be said against aristocratic government qua 
government. Considered from the standpoint of the qual- 
ity of the government itself, without reference to its effect 
upon the masses who are permanently excluded from par- 
ticipation in political affairs, government by the most ca- 
pable few undoubtedly possesses elements of strength and 
efficiency which are conspicuously absent from a system in 
which the untrained and ignorant masses hold the reins of 
power, John Stuart Mill has well remarked that "the gov- 
ernments which have been remarkable in history for sus- 
tained mental ability and vigor in the conduct of affairs 
have generally been aristocracies," though, as he adds, 
they have been "without exception aristocracies of public 
functionaries — that is, of men who have made public 
business an active profession and the principal occupa- 
tion of their lives." ^ 

But the weakness of aristocracy as a practical system of Weakness 
government lies in the difficulty of finding any safe and cratic^*°' 
just principle of selection by which the fittest, politically Govem- 
speaking, may be differentiated from the unfit and, when 
this is done, of providing any adequate security against 

* The redeeming qualities of this form of government, remarks Lord Brougham, 
are its firmness of purpose, resistance of violent change, discontinuance of warlike 
policy, and encouragement of genius. Works, vol. XI, p. 3. De Tocqueville, in 
commenting on the merits of aristocracy, says: "It is not a question of easy solution 
whether the aristocracy or the democracy is most fit to govern a country. But it is 
certain that democracy annoys one part of the country and that aristocracy oppresses 
another part. When the question is reduced to the simple expression of the struggle 
between poverty and wealth, the tendency of each side of the dispute becomes per- 
fectly evident without further controversy." "Democracy in America" (trans, by 
Reeves), vol. I, p. 203. For a further view of De Tocqueville on the merits of aris- 
tocracy, see iWd., p. 258. 

""Representative Government," p. 107. 



214 



FORMS OF GOVERNMENT 



Views of 
Seeley 



Lecky on 
Aristo- 
cratic 
Govern- 
ment 



the temptation of the former class to exercise their powers 
in their own interest. It is now generally agreed that the 
most capable and fit of the population cannot be selected 
by conferring the power to govern upon certain families 
and their descendants, for political capacity and probity 
are qualities not always transmitted from father to son. 
There are still, however, some highly respected writers 
who defend under certain limitations aristocracies con- 
stituted on the hereditary principle. Sir Henry Maine, 
for example, has expressed the opinion that the chances 
of getting capable persons into the service of the state are 
as great under the principle of hereditary succession as 
under a system of popular election.' 

"A man," said Professor Seeley, "who is the son of a 
statesman, who has grown up in the house of a statesman, 
may be presumed to have learnt something, if only some 
familiarity with public questions, some knowledge of 
forms of routine which others are likely to want; and 
there is a fair probability that he may have acquired 
more and a certain possibility that, as the younger Pitt, 
he may have acquired very much and also inherited very 
much." 2 

The late W. E. H. Lecky, in a defense of the English 
aristocracy, commenting on a saying of Benjamin Franklin 
that there was no more reason for hereditary legislators 
than for hereditary professors of mathematics, and that it 
was absurd to expect that the eldest son of a single family 
should always display exceptional or even average capacity. 



'Thus he says (" Popular Government," p. i88) : "Under all systems of gov- 
ernment, under monarchy, aristocracy, and democracy alike, it is a mere chance 
whether the individual called to the direction of public affairs will be qualified 
for the undertaking ; but the chance of his competence, so far from being less under 
aristocracy than under the other two systems, is distinctly greater. If the qualities 
proper for the ccwiduct of government can be secured in a limited class or body of 
men, there is a strong probability that they will be transmitted to the corresponding 
class in the next generation although no assertion be possible as to individuals." 

' "Introduction to Political Science," lect. VI. 



ARISTOCRATIC GOVERNMENT 215 

remarked: "But it is not absurd to expect that more than 
five hundred families, thrown into pubHc life for the most 
part at a very early age, animated by all its traditions 
and ambitions, and placed under circumstances exceed- 
ingly favorable to the development of political talent, 
should produce a large amount of governing faculty. . . . 
The qualities required for successful political life are, not 
like poetry or the higher forms of philosophy, qualities that 
are of a very rare and exceptional order. They are for the 
most part qualities of judgment, industry, tact, knowledge 
of men and of affairs, which can be attained to a high degree 
of perfection by men of no very extraordinary intellectual 
powers. . . . Few persons, I think, will dispute the high 
average capacity for government which the circumstances 
of the English aristocratic life tend to produce." ^ Of the 
value of such an aristocracy to the state Lecky goes on 
to say: "It is of no small importance that a nation should 
possess a class of men who have a large stake in the pros- 
perity of the country, who possess a great position inde- 
pendent of politics, who represent very evidently the 
traditions and the continuity of political life, and who, 
whatever may be their faults, can at least be trusted to ad- 
minister affairs with a complete personal integrity and 
honor. In the fields of diplomacy and in those great 
administrative posts which are so numerous in an extended 
empire, high rank and the manners that commonly ac- 
company it are especially valuable, and their weight is not 
the least powerfully felt in dealing with democracies." ^ 
But when all is said that can be said in favor of birth as 
the principle of selection, the fact remains, as Seeley readily 
admits in his defense of the system, that it works for the 

' "Democracy and Liberty," vol. I, pp. 314, 317. For De Tocqueville's view 
of the excellencies and faults of the English aristocracy, see his "Democracy 
in America," vol. I, p. 261. 

^ Ibid., p. 321. Among the same line see Paley, " Political and Moral Philos- 
ophy," bk. VI, ch. 6. 



2l6 



FORMS OF GOVERNMENT 



Property 
not a 
Good Test 
of Fitness 
for Gov- 
ernment 



Artificial 
or"Sham" 
Aristoc- 
racies 



false aristocracy as well as the true and that the worse 
traits are transmitted as well as the best. 

The possession of property, whether of land or personalty, 
Is an equally unsatisfactory test of political capacity, espe- 
cially if it be inherited wealth. If gained by honest toil, 
thrift, and wise management it is, however, a sign of the 
possession by the owner of qualities which undoubtedly 
fit him for some participation in public affairs, though ob- 
viously there are many men equally capable and worthy 
who are not property owners. In other words, property, 
like birth, is not the only criterion, and therefore the gov- 
erning power cannot wisely be restricted to either class or 
to both combined. And so with all other tests which do 
not rest upon intrinsic merit. Yet to prove that no just 
or adequate tests can be found really proves nothing 
against aristocracy itself. The question of whether there 
ought to be a test by which the fitness of men to exercise 
a share in the government, as Seeley observes, is not an- 
swered by showing that wealth is not such a test or that 
birth is not such a test.^ The trouble is not with the aris- 
tocracy, but with the test upon which it is constituted. 

Rousseau and Jefferson, both champions of democracy 
in their respective countries, pointed out the distinction 
between what they called natural aristocracies and arti- 
ficial or "sham" aristocracies. Rousseau considered elect- 
ive aristocracies to be the only natural ones, and these he 
pronounced the "best of all governments," since they 
insured "probity, enlightenment, experience, and all the 
other guarantees that the government would be wisely 
administered." In a word, he said, the best and most 



* The oppression which heis come from tyrannous minorities in the past has, as 
Seeley remarks, come not from aristocracies, but from corrupt oligarchies. Much of 
the objection that has been directed against aristocracy, therefore, would be more 
defensible if it were leveled against oligarchy. If the right test could be devised by 
which oligarchy could be avoided, we would have only pure and true aristocracies, 
and they would be hailed with delight by every one. Op. cit., p. 347. 



ARISTOCRATIC GOVERNMENT 217 

natural order is where the wisest govern the multitude, if 
there is any guarantee that the government will be con- 
ducted for the benefit of the people and not for them- 
selves.^ Jefferson agreed with Rousseau in declaring all 
aristocracies based on wealth or birth to be not "only 
useless but mischievous and dangerous" though he was 
a strong defender of those based on "virtue and talent." ^ 
Contrary to the popular belief, he was a believer in aristo- 
cratic government, when the aristocracy was of the 
latter kind.^ "There is," he said, "a natural aristocracy 
founded on talent and virtue which seems destined to 
govern all societies and all political forms, and the best 
government is that which provides most efficiently for the 
purity of the choosing of these natural aristocracies and their 
introduction into the government." Artificial aristocra- 
cies have always been hated by the masses because they are 
constituted on the theory that some are born to rule and 
others to be their subjects. All of them, whether natural 
or artificial, are apt to be narrow and exclusive, and are 
inclined to arrogance and excessive conservatism which 
at times retards wholesome progress.* 

Public opinion toward aristocracies in recent times has The Pass- 
been so unfavorable that no example of a pure aristocracy Aristo-*^* 
has survived the middle of the nineteenth century. The cratic 
ancient aristocracy of Rome gave way to democracy. The 
medieval aristocracies of Germany and Italy were super- 
seded by the growing power of the princes, and the royal 

' "Contrat social," bk. Ill, ch. 5. * Works, vol. IX, p. 425. 

' Compare Merriam, "American Political Theories," p. 156. 

^Compare Bluntschli, "Allgemeine Staatslehre," bk. VI, ch. 19. See also 
Lord Brougham, "The British Constitution," Works, vol. XI, p. 3, for a discussion 
of the evils of the aristocratic form. " There never was an aristocracy," says Lave- 
leye, " more devoted to liberty or more fitted to govern than that of England, yet it 
opposed every extension of the suflFrage and often in legislation it sacrificed the inter- 
ests of the people to its own privileges." " Le Gouvernement dans la Ddmocratie," 
vol. I, pp. 273-274. For a full discussion of aristocracy as a form of government 
see De Parieu, " Principes de la Science politique," ch. 3. 



2i8 FORMS OF GOVERNMENT 

governments which they estabhshed were In time over- 
whelmed by the rise of the democracy. In modern times 
they survive only in part, being associated wherever they 
exist with democracy and monarchy. We are entitled by 
deductions from history, say Woolsey, to lay down the 
principle that aristocracy is ordinarily capable of no long 
continuance, when it is the sole governing or by far the 
strongest power in the state. ^ 

Aristocracy is a very common form of government in the 
infancy of states, when political consciousness manifests 
itself only in the minds of a few. As this consciousness 
spreads, the state becomes democratic, and as a matter of 
fact most of the aristocracies of history have fallen before 
the advance of democracy.^ Aristocracy proper is a princi- 
ple which all states have admitted and to some extent fol- 
lowed in practice.^ In all ancient states, democracies and 
aristocracies alike, large classes of persons were excluded 
from participation in public affairs. The laboring classes 
everywhere have been enfranchised only In comparatively 
recent years. In England, at the beginning of the eigh- 
teenth century one of the freest of states, all the lower 
classes and a large proportion of the middle classes were 
excluded from all share in the government of the country. 
And the same was true to a less degree in America for a 
considerable period after the colonies became independent. 
Modern democracies no longer exclude the laboring classes, 
yet practically all of them apply standards of fitness, 
even if they sometimes apply them indirectly and in a 
manner unconsciously. In this sense the governments of 

' "Political Science," vol. II, p. i. 

^ " Except in ancient Sparta and modern Venice," says Lord Brougham, " there 
is no example of an aristocracy which sooner or later was not transferred into a 
democracy or a monarchy." "Political Philosophy," vol. II, p. 197. 

' " Almost all the nations," observes De Tocqueville, " which have exercised a 
powerful influence upon the destinies of the world by conceiving, following up, and 
executing vast designs — from Rome to England — have been governed by aristo' 
cratic institutions." " Democracy in America," vol. I, p. 256. 



DEMOCRATIC OR POPULAR GOVERNMENT 219 

most states are aristocratic. Modern government is such ah gov- 

a difficult art and requires so much skill and special ^ri™^"*^ 

knowledge that the whole number of persons really qual- tocratic 

ified is very small. In short, it must from the very Extent 
nature of the case be largely government by specialists. 

III. DEMOCRATIC OR POPULAR GOVERNMENT 

Democratic or popular government is, as has been The 
pointed out, that form in the constitution and adminis- ofDemoc- 
tration of which the great mass of the adult population "^^^y 
have a direct or an indirect share. The democratic gov- 
ernments of to-day are founded on the theory that any 
honest and self-supporting male citizen is, on the average, 
as well qualified as another for participating in the busi- 
ness of government.* They rest, said Jefferson, on con- • 
fidence in the self-governing capacity of the great mass of 
the people, and in the ability of the average man, or of av- 
erage men, to select rulers who will govern in the interest 
of society.^ 

But it must not be overlooked that, however democratic 
the basis of government may be, the actual business of 
governing must be restricted to a comparatively small 
number of persons — that is, it must be aristocratic. 
"The whole people cannot operate the government any 
more than the whole of twenty people in an omnibus can 
drive the horses. Some one must drive as some one must 
govern." 

The chief merits of popular government consist in its Merits of 
beneficial effects, first, on the character of the public service oovem- 



* Sidgwick (" Elements of Politics," p. 610) rejects the correctness of this assump- 
tion and maintains also with obvious truth that the doctrine of the consent of the gov- 
erned must be taken with qualifications. See also Seeley {op. cit., p. 327), who asserts 
that all democracies as a matter of fact apply standards of fitness and that those of a 
representative type are essentially aristocratic. "I do not know," he says, "in what 
part of history you could find a state founded on the principle that one man is as good 
as another." 

' Quoted by Merriam, "American Political Theories," p. 163. 



ment 



220 FORMS OF GOVERNMENT 

itself; and second, upon the citizens who share in its con- 
trol and administration. Under the first head it is claimed 
for popular government that it is the only form which 
responds readily to the needs and desires of the people for 
whom it is instituted — is, in short, the only form in which 
responsibility to the governed can be effectively enforced. 
Always subject to popular control and immediately re- 
sponsible to the electorate, it is largely free from the 
temptation to govern in its own interest or that of a class. 
Responsibility in any form of government is the soul of 
efficiency, and governments organized so as to secure in 
an effective manner the one are likely to possess the prin- 
cipal elements of the other. 
Mm on By no one has the strength of democratic government 

^nutive ^^ it^ representative form been so ably set forth as by 
Democ- John Stuart Mill, who defined it as that form in which 
"the whole people, or some numerous portion of them, ex- 
ercise the governing power through deputies periodically 
elected by themselves." There is no difficulty in show- 
ing, he asserts, that the ideally best form of government 
is that in which the supreme controlling power in the last 
resort is vested in the entire aggregate of the community, 
every citizen not only having a voice in the exercise of 
that ultimate sovereignty, but being at least occasionally 
called on to take an actual part in the government, by the 
personal discharge of some public function, local or general.^ 
The only government, he continues, which can fully sat- 
isfy the exigencies of the social state is one in which the 
whole people participate, and the degree of participation 
should everywhere be as great as the general degree of 
improvement of the community will allow, and ultimately 
all should be admitted to a share in the sovereign power of 
the state.^ So far as the welfare of the community is con- 
cerned, the superiority of popular government, Mill goes 
on to say, rests upon two principles of as universal truth 

' "Representative Government," p. 51. ' Ihid., p. 66. 



DEMOCRATIC OR POPULAR GOVERNMENT 221 

and applicability as any general proposition which can be 
laid down respecting human affairs. The first is that 
the rights and interests of the individual can only be safe- 
guarded when he is able to "stand up" for them himself; 
the second is that the general prosperity attains a higher 
degree and is more widely diffused in proportion to the 
arnount and variety of the personal energies enlisted in 
promoting it.^ 

But the greatest glory of democratic government in the influences 
opinion of its votaries does not flow so much from its own cratic™°' 
inherent excellence as a political contrivance, as from its Govern- 
influence in elevating the masses of the people, developing 
their faculties, stimulating interest among them in public 
affairs, and strengthening their patriotism by allowing 
them a share in its administration.^ Democracy refuses 
to concede that some are born to rule and others to obey, 
and that some should be citizens and others subjects. It 
recognizes no privileged classes, but puts all on a footing of 
political equality. " No man is free in the political accep- 
tation of the word," says Laveleye, ** if he does not have some 
share in the government of his country, and he who is gov- 
erned, not by functionaries whom he has helped to choose, 
but by authorities constituted without his consent, is a 
subject, not a citizen." ^ For a government in which the 
masses have no share they naturally show little readiness 
to make sacrifices. Democracy strengthens the love of 
country because the citizens feel that the government is 
their own and that magistrates are their servants rather 
than their masters. The French people, to quote Lave- 
leye again, never began to love France until after the Revo- 

* Ibid., p. 52. 

' Compare Bluntschli, " Allgemeine Staatslehre," bk. VI, ch. 21 ; also his "Poli- 
tik," bk. VI, ch. 2; also Pradier-Foderd, "Principes g^neraux de Droit de Poli- 
tique," etc., p. 240. 

' "Le Gouverneraent dans la Democratie," vol. I, p. 273. See also Vacherot, 
"La Democratic," ch. i, for an argument that liberty can exist only under the 
democratic form; also Prius, "Esprit du Gouvernement democratique," ch. i. 



222 



FORMS OF GOVERNMENT 



Reaction 
upon the 
Quality of 
the Gov- 
ernment 



Elements 
of Weak- 
ness 



lution, when they were admitted to a share in its govern- 
ment, since which time they have adored it/ Popular 
governments, resting as they do on the consent of the 
governed and upon the principle of equality, are more im- 
mune from revolutionary disturbances than those in which 
the people have no right of participation. De Tocque- 
ville has justly remarked that almost all revolutions which 
have changed the face of the world have had for their 
purpose the destruction of inequality. 

The same author, in his study of democracy in America, 
dwelt repeatedly upon the interest which the American 
people take in public affairs, their high state of intelligence 
in regard to political matters, and their natural patriotism.^ 
He pointed out that one of the great advantages of a 
democracy is that it serves as a sort of training school for 
citizenship. Mill likewise laid great stress upon the in- 
fluence of democracy in elevating the character and intel- 
ligence of the masses. The "most important point of 
excellence," he said, "which any form of government can 
possess i^ to promote the virtue and intelligence of the 
people themselves, and the first consideration in judging 
of the merits of a particular form of government is how 
far they tend to foster intellectual and moral qualities 
in the citizens." ^ The government which does this best, 
he continues, is likely to be the best in all other respects. 
Government is thus an agency of education as well as an 
organization for managing the collective affairs of the 
community. 

The faults and weaknesses of democracy as a form of 
government have been emphasized by many writers in the 
past, and have more often been exaggerated than im- 
partially stated. First of all, it is said that democracy 



' "Le Gouvernement dans la Democratic," vol. I, p. 274. 

* See especially, vol. I, pp. 94, 97, 259, 263. 

* " Representative Government," p. 29. For further discussion of the virtues of 
democratic government, see Benoist, " Sophismes politiques de ce Temps," ch. 3. 



DEMOCRATIC OR POPULAR GOVERNMENT 223 

emphasizes quantity rather than quality, in that it does 
not give proper consideration to worth and special fitness, 
qualities that count for so much in other fields of human 
activity. It rests on the false principle that one man is 
as capable of governing as another, in short, that all men 
are specialists when it comes to the business of govern- 
ment. Yet government really done well, as the late Mr. 
Justice James Fitzjames Stephen aptly remarked, requires 
an immense amount of special knowledge and the steady, 
restrained, and calm exertion of a great variety of the 
highest talents which are to be found. ^ The results of 
ignorance and incapacity can no more be avoided in the 
difficult art of government than in private business; they 
are as disastrous in the one as in the other. Both Mon- 
tesquieu and Mill admitted that democratic government 
was practicable only where the citizens possessed a high 
amount of virtue and intelligence. Democracy stands 
for short tenures, rotation in office, honorary as contra- 
distinguished from professional service, and the extension 
of the privilege of ofiiceholding to all without qualifica- 
tion — principles certainly not conducive to strength and 
efficiency in government.^ Burke once criticised democ- 
racy for the overconfidence of those who participate in 
the government and for their sense of irresponsibility. If 
a blunder or a wrong be committed, he said, the share of 
each individual in the responsibility or infamy is infini- 
tesimal. Each man's approbation of his own acts has to 
him the appearance of a public judgment in his favor. 
"A perfect democracy," he affirmed, "is the most shame- 
less thing in the world, and as it is the most shameless it is 
also the most fearless."^ Some writers have attempted 

' " Liberty, Fraternity, and Equality," p. 245. 

^ Cf. Pradier-Fodere,"PrincipesgenerauxdeDroitdePolitique,"etc.,pp. 240-241. 

' " Reflections on the French Revolution " (Clarendon ed., p. no). See also his 
Collected Works, vol. IV, p. 227. But he obviously meant a pure, not a representa- 
tive democracy. 



224 



FORMS OF GOVERNMENT 



Maine's 
Criticism 
of Democ- 
racy 



to show that democratic societies are not favorable to 
art, science, and culture because their governments do 
not encourage such things either by direct aid or through 
the maintenance of conditions under which they naturally 
flourish/ 

Two of the most vigorous criticisms of democracy to be 
found in English literature are those of Sir Henry Maine, 
in his work on "Popular Government," and Professor W. 
E. H. Lecky, In his "Democracy and Liberty." Maine, 
after a review of the history of popular government, con- 
cluded that "it affords little support for the assumption 
that it has an Indefinitely long future before it." Expe- 
rience, he asserted, rather tends to show that it is a form 
of government characterized by "great fragility," and 
that since its appearance in the world "all forms of gov- 
ernment have become more insecure than they were be- 
fore." ^ " Popular governments," he declared, " have been 
repeatedly overturned by mobs and armies in combina- 
tion; of all governments they seem least likely to cope 
successfully with the greatest of all irreconcilables, the 
nationalists; they imply a breaking up of pohtical power 
into morsels and the giving to each person an infinltesimally 
small portion; they rest upon universal suffrage, which is 
the natural basis of tyranny; they are unfavorable to 
Intellectual progress and the advance of scientific truth; 
they lack stability; and they are governments by the 
ignorant and unintelligent." ^ "Of all the forms of gov- 

* See, for example, Bluntschli, " Allgemeine Staatslehre," bk. VI, ch. 23; also his 
"Politik," bk. VI, ch. 2. Bluntschli, however, thinks that democracies are more 
favorable than other forms of government to public education, charity, etc. The 
subject is discussed by De Tocqueville in his "Democracy in America," vol. II, 
bk. I, chs. 9-12. See especially pp. 32, 35, 40, 42, 51, 52, 80, of the English trans- 
lation by Reeves. See also Maine, "Popular Government," ch. i; and Laveleye, 
"Le Gouvernement dans la D6mocratie," bk. VI, ch. 7. 

'"Popular Government," p. 20. 

* The signs of the times, says Maine, are not at all of favorable augury for the 
future direction of great multitudes by statesmen wiser than themselves. The 
leaders may be as wise and able as ever, but they are manifestly listening nervously 



DEMOCRATIC OR POPULAR GOVERNMENT 



225 



ernment, democracy," he declared, "is by far the most 
difficult. Little as the governing multitude is conscious of 
this difficulty, prone as the masses are to aggravate it by 
their avidity for taking more and more powers into their 
direct management, it is a fact which experience has placed 
beyond all dispute. It is the difficulty of democratic gov- 
ernment that mainly accounts for its ephemeral duration," ^ 

The inherent difficulties of democratic government, he No Con- 
goes on to say, are so great and manifold that in large j^gt'ween 
complex modern societies it could neither last nor work if Democ- 
it were not aided by certain forces which are not ex- Liberty 
clusively associated with it, but of which it greatly stimu- 
lates the energy. The prejudices of the people are far 
stronger than those of the privileged classes; they are far 
more vulgar and they are far more dangerous because 
their opinions are apt to run counter to scientific conclu- 
sions.^ Maine denies that there is any real connection 
between democracy and liberty, and asserts that in case 
there is and the choice has to be made between them, it 
is better to remain a nation capable of displaying the 
virtues of a nation than even to be free.^ " By a wise con- 

at one end of a speaking tube which receives at the other end the suggestions of a 
lower intelligence. Ibid., p. 38. 

' Cf. Pradier-Fodere ("Principes gendraux de Droit de Politique," etc., p. 240), 
who, while pronouncing democratic government to be the "most rational in prin- 
ciple," declares that it is the "most dif&cult to apply." Cf. also Duguit, "Droit 
constitutionnel," p. 3S6. 

- Ibid., p. 67. Compare also Hyslop in his " Democracy " (p. 35), who maintains 
that " a small country, with a scanty population, few resources and industries, and 
similar social sentiments, may go on without much difficulty under democratic in- 
stitutions. But a vast territory with untold material wealth waiting for labor, a 
growing population and with it an increase in the severity of the struggle for exist- 
ence, and the great diversity of moral, economic, political, and social sentiments, 
must call for government that corresponds to this complexity." 

^ Ibid., p. 63. Maine expresses the opinion that the government of a benevolent 
despot is preferable to that of a democracy. " There is no doubt," he says, " that the 
Roman emperor cared more for the general good of the vast groups of societies 
subject to him than the Roman republic had done." "Popular Government," 
p. 83. Cf. also Laveleye on "The Good Despot," op. n't., bk. V, ch. 7. 
POL. SCI. — 15 



226 



FORMS OF GOVERNMENT 



Lecky on 
the Evils 
of Democ- 
racy 



stitution," says Maine, "democracy may be made as calm 
as the water in a great artificial reservoir; but if there is a 
weak point anywhere in its structure, the mighty force 
which it controls will burst through it and spread destruc- 
tion far and near."* 

Lecky likewise dwells upon the dangers of government 
by the "poorest, the most ignorant, the most incapable, 
who are necessarily the most numerous." ^ The idea of 
government by such a class reverses, he declares, all the 
past experience of mankind. "In every field of human 
enterprise, in all the computations of life, by the inexo- 
rable law of nature, superiority lies with the few and not 
with the many, and success can be obtained by placing the 
guiding and controlling power mainly in their hands." 
" Democracy insures neither better government nor greater 
liberty; indeed, some of the strangest democratic ten- 
dencies are adverse to liberty. On the contra y, strqng 
arguments may be adduced both from history and from 
the nature of things to show that damocracy may often 
prove the direct opposite of liberty." Ancient Rome and 
modern France, for example, seem to furnish evidence of 
the truth of Lecky's assertion. The French despotisms, 
which had their foundations on plebiscites, were quite 
as natural forms of democracy as republics, yet liberty 
can hardly be said to have been one of their virtues. To 
place the chief power in the most ignorant classes is to 
place it in the hands of those who naturally care least 
for political liberty and who are most likely to follow 
with an absolute devotion some strong leader. The 
upper and middle classes have shown the greatest devo- 
tion to liberty and have been its most ardent defenders, 
while democracy has often enough sought to dethrone 

' "Popular Government," p. iii. 

' For his views on government by the "unthinking and irresponsible multitude," 
see his "Democracy and Liberty," vol. I, pp. 18-21, where the evils of universal 
sufifrage were dwelt upon. 



DEMOCRATIC OR POPULAR GOVERNMENT 227 

It/ Speaking of the United States, he declares, as De Democ- 
Tocqueville did before him, that in hardly any other unfavor- 
country does the best life and energy of the nation flow ^^le to 
so habitually apart from politics, and is the best talent ture. Sci- 
so rarely chosen to the public service.^ Likewise he adopts ^°"' ^^^ 
the view of De Tocqueville, Laveleye, Bluntschli, and 
Maine that democracy is unfavorable to the development 
of the higher forms of intellectual life, such as literature, 
art, and science, in short, that democracy levels down 
quite as much as up.^ Speaking of the alleged equality Democ- 
upon which the American democracy rests, Maine declares duces'in- 
that "there has hardly ever been a community in which equality 
the weak have been pushed so piteously to the wall; m Equality 
which those who have succeeded have so uniformly been 
the strong, and in which, in so short a time, there has 
arisen so great an inequality of private fortune and do- 
mestic luxury." * Laveleye, in his work entitled "Le 
Gouvernement dans la Deraocratie, " argues similarly to 
show that democracy does not necessarily produce equality 
any more than it produces liberty, and that it is, besides, 
the enemy of both wealth and culture. Inequality of 
conditions and the struggle of classes, he declares, were 
responsible for the fall of the ancient democracies. If 
the people are ignorant and incapable, democracy must 
inevitably degenerate into anarchy and despotism, and 
both equality and liberty will be lost.^ 

' "Democracy and Liberty," vol. I, pp. 212-215. ^^ the subject of democracy 

and universal suffrage, see Prins, "Esprit du Gouvernement democratique/'ch. 3. 

^ Ibid., p. 94; De Tocqueville, op. cit., vol. I, ch. 13. ^ Ibid., pp. 105, 108. 

* "Popular Government," p. 51. Compare also Stephen ("Liberty, Fraternity 
and Equality," p. 239), who remarks that "in a pure democracy the ruling men 
vdll be the wire-pullers and their friends ; but they will be no more on an equality 
with the people than soldiers or ministers of state are on an equality with the subjects 
of a monarchy. Under all circumstances the rank and file are directed by leaders 
of one kind or another, who get the command of their collective force." For further 
discussion of the defects of democracy see Jethro Brown, " The New Democ- 
racy," ch. 2. 

* See especially bk. VI, chs. 5, 6, and 7. Laveleye argues, very properly, it would 



228 FORMS OF GOVERNMENT 

The Concerning the future of democratic government there 

Democ-° ^^ no longer any considerable difference of opinion. The 
racy adverse opinions that used to be so commonly expressed 

have slowly dwindled in number and respectability until 
only here and there are serious doubts raised, though 
warnings are still frequently heard. Sir Henry Maine, 
who ventured the opinion twenty-five years ago that the 
history of popular government did not warrant the as- 
sumption that it had an indefinite future, admitted that 
the example of the United States had done much to raise 
the credit of democratic republics and to reveal their 
possibilities. Lecky, who, like Maine, feared and dis- 
trusted democracy, also admitted that it was "likely to 
dominate, at least for a considerable time, in all civilized 
countries," and that the only questions to be met were 
those relating to the form which it should take and the 
means by which its characteristic evils could be best 
avoided. The most remarkable political phenomenon of 
the latter part of the nineteenth century, as Lecky ob- 
serves, has been the "cpmplete displacement of the center 
of power in free governments." Democracy has advanced 
until it has spread over the greater part of the civilized 
world. It has in effect wrought a profound and far-reach- 
ing revolution throughout Europe and America, though in 

seem, that education ought to be obligatory, and also free and non-sectarian, in a 
democracy, as a means of preserving it from the calamities of which he speaks above, 
p. 328. Lord Brougham (Works, vol. XI, p. 4) offers the following estimate of 
democratic government: "The democratic form has some virtues of a high 
order. The rulers have no sinister interests; personal ambition has no scope; 
purity is promoted, not merely in the conduct of public men, but in the manners 
of the people ; and the resources of the state are husbanded at all times ; while in 
war they are fully called forth. The defects, however, are equal to the excellencies. 
The supreme power is placed wholly in irresponsible hands, because the holders 
of it are secure from all personal risk, and beyond the reach of censure; and 
those whom they choose to exercise it share in their irresponsibility. There is no 
security for steady and consistent policy, either in foreign or domestic affairs; a 
risk of entire and violent change attends the administration, and even the constitu- 
tion ; and the peace of the country, as well abroad as at home, is in perpetual and 
imminent danger." 



DEMOCRATIC OR POPULAR GOVERNMENT 229 

most instances it has been effected without acts of violence 
or change in the external framework of the government. 
Its continued spread is inevitable and irresistible, and no 
hand can stay its advance. For more than half a century 
the opinion has been steadily gaining ground that the 
masses are as well qualified for governing and more worthy 
to be trusted than any small minority, however respected 
or highly trained. Democracy represents for us, as Sidg- 
wick aptly remarks, not merely a depressingly prevalent 
political fact, but a widely and enthusiastically accepted 
political ideal. ^ Lecky is charitable enough to say that 
the American democracy is not a failure, but he asserts 
that it carries with it at least as much of warning as of 
encouragement. One thing is absolutely essential to its Condi- 
safe working, he concludes, namely, a "written constitution, gemiaMo 
securing property and contract, placing difhculties in the its Suc- 

CGSS 

way of organic changes, restricting the power of majori- 
ties, and preventing outbursts of mere temporary discon- 
tent and mere casual coalitions from overthrowing the 
main pillars of state." ^ He might also have added to his 
list of essentials an intelligent and virtuous citizenship, 
for upon this strong foundation, more than upon anything 
else, the future of democracy throughout the world de- 
pends. Happily the widespread interest in public educa- 
tion and civic honesty offers an encouraging prospect for 
its future. 

What has been said above concerning the strength and Pure or 
weakness of democracy has reference mainly to repre- Democ- 
sentative democracy. The pure or direct type exists in racy 
too rare and restricted a form in the modern world and is 
too impracticable to merit extended consideration. Suf- 
ficing for the simple needs of the few communities where it 
still survives, it is wholly unsuited to the conditions of the 

' "Elements of Politics," p. 608. On "the present theory of democracy," see 
Jethro Brown, " The New Democracy," ch. x. 
' "Democracy and Liberty," vol. I, p. 112. 



230 



FORMS OF GOVERNMENT 



New 

Forms of 
Democ- 
racy 



Advan- 
tages of 
Federal 
Govern- 
ment 



complex states of to-day. Nevertheless recent years have 
seen the growth of popular dissatisfaction with the repre- 
sentative system, and a demand for more direct partici- 
pation of the masses in the government, particularly in 
the legislative function/ This growing self-consciousness 
of the masses has found expression in a variety of new in- 
stitutional forms of democracy, such as the referendum, 
the initiative, proportional representation, the recall, etc. 
The introduction of these new forms of direct democracy 
into the constitution of many states bids fair to work 
important changes in the character of the representative 
system. 

IV. FEDERAL GOVERNMENT 

Federal government, like all other forms, has its elements 
of strength and of weakness, its advantages and its disad- 
vantages. Among the more conspicuous merits of the 
federal system may be noted, first of all, that it affords a 
means of uniting into a powerful state commonwealths 
more or less diverse in character and having dissimilar in- 
stitutions, without extinguishing wholly their separate 
existences. It furnishes the means of maintaining an 
equilibrium of centrifugal and centripetal forces in a state 
of widely different tendencies. Federalism has been the 
means of bringing together many petty states in the past 
which, but for this, would have remained forever apart. 
It has thus proved a powerful unifying force where other 
forms of government have repelled. Again, it excels all 
other forms of government in the effectiveness with which 
it combines the advantages of national unity and power 
with those of local autonomy.^ It secures at the same 

* Cf. Godkin ("Unforseseen Tendencies of Democracy," p. 144), who declares 
that the representative system, after a century of existence under a very extended suf- 
frage, has failed to satisfy the expectations of its early promoters and is likely to make 
way in turn for the more direct action of the people on the most important questions 
of government. 

' The federal system, says De Tocqueville, was created with the intention of com- 



FEDERAL GOVERNMENT 231 

time all the advantages of uniformity in the regulation of 
affairs of general concern with those of diversity in the 
regulation of local affairs. Instead of concentrating the 
power of the state in a single organ or set of organs, as 
is the case in the unitary state, federalism distributes it 
between a common central government and a number of 
local governments, and thus prevents the rise of a single 
despotism absorbing all political power and menacing the 
liberties of the people/ By securing the advantages of self- 
government for the people in those affairs which are pecul- 
iarly local to them, it reconciles them to the loss of power 
which they have sustained through the surrender of their 
control over other affairs to the general government. Fur- 
thermore, through the right of local self-government, the 
interest of the people in local affairs is stimulated and pre- 
served, they are educated in their civic duties, and this in 
turn reacts upon the character of the local administration. 
Federalism, observes Bryce, allows experiments in local 
legislation and administration which could not safely be 
tried in a large country having a unitary system of govern- 
ment. At the same time it supplies the best means of 
developing a new and vast country by allowing the par- 
ticular localities to develop their special needs in the way 
they think best.^ 

The excellencies of federal government have been widely Views of 
and frequently dwelt upon by political writers during the writers 
last half century. John Fiske declared it to be the only 
kind of governm.ent which, according to modern ideas, is 
permanently applicable to a whole continent.^ Sidg- 

bining the different advantages which result from the greater and the lesser extent of 
nations. "Democracy in America," vol. I, p. 176. 

' "It is very probable," says Montesquieu, "that mankind would have been at 
length obliged to live continuously under the government of a single person had they 
not contrived a kind of constitution that has all the advantages of a republican to- 
gether with the external forces of a monarchical government ; I mean a confederate 
republic." "Esprit des Lois," bk. IX, ch. i. 

- "The American Commonwealth," ch. 28. ' "American Political Ideas," p. 92. 



232 



FORMS OF GOVERNMENT 



Weak- 
nesses of 
Federal 
Govern- 
ment 



wick, an English writer, predicts that we shall see an 
extension of it even in western Europe, where the example 
of America will be followed/ The German writer Brie, 
who has made an elaborate study of federal government, 
declares that it represents the highest realization of the 
state idea ; ^ while Westerkamp, whose researches have 
been along the same line, dwells upon its excellencies and 
points out that it has spread until it embraces a portion 
of the globe equal to three times the territorial area of 
Europe.^ 

In recent years, however, owing to changed conditions 
under which its success has been less marked, there has 
been an increasing disposition to dwell upon the weaknesses 
as well as the virtues of federal government. These 
weaknesses are coming to be more apparent as economic and 
industrial conditions of society become more complex and 
require uniformity of regulation. As one writer has re- 
cently said: "Federal government has very decided limi- 
tations, serious faults of structure, unheeded perhaps at the 
time of its inception, but likely to break down under the 
altering strain of a new environment. Politically and on 
its external side it has proved itself strong, but economically 
and in its internal aspect it is proving itself weak." * 

First of all, in the conduct of foreign affairs federal gov- 
ernment possesses an inherent weakness not found in unit- 
ary government. The experience of the United States in 
particular has shown that the individual members of the 
federal union, by virtue of their reserved powers over the 
rights of person and property, may embarrass the national 
government in enforcing its treaty obligations in respect to 
aliens residing in the United States. Likewise in the do- 



' "Development of European Polity," p. 439. 
' "Theorie der Staatenverbindungen," p. 135. 

* "Staatenbund und Bundesstaat," p. vi. 

* Leacock, "Limitations of Federal Government," "Proceedings of the Ameri- 
can Political Science Association," vol. V, p. 39. 



FEDERAL GOVERNMENT 233 

main of internal affairs federal government has given evi- 
dence of weaknesses which have grown enormously in recent 
years. It means division of power between coordinate 
authorities in many fields of legislation and administration, 
and division of power always produces weakness, whatever 
other advantages it may secure. Particularly as respects 
such matters as commerce and transportation, marriage 
and divorce, labor, and industries which are national in 
their scope of operation, federalism usually means variety 
of regulation where there ought to be uniformity. It is 
here that some of the most serious faults of the United 
States federal system have shown themselves.^ In the 
domain of military affairs federalism is of course entirely 
out of place, and usually where the federal system of 
government exists the unitary principle prevails in military 
administration .^ 

' Of course it does not necessarily follow that there must be variety of legisla- 
tion under the federal system in any particular domain. That depends upon the 
methods of distribution. The regulation of marriage and divorce, for example, 
may be conferred upon the central government, as is the rule in Germany, instead of 
being left to the separate states, in which case there will be uniformity. It is not 
necessary, therefore, to abolish the federal system in order to remove such evils as 
those connected with want of uniformity of legislation. That may be done by a re- 
distribution of powers by which the central government is given exclusive jurisdic- 
tion over those subjects which require uniformity of legislation. 

* Commenting on the federal system, De Tocqueville says, "It is one of the com- 
binations most favorable to the prosperity and freedom of man. I envy the lot of 
those nations which have been enabled to adopt it." However, he expresses doubt 
whether such a government could maintain a long or unequal contest with a nation 
of similar strength in which the government is centralized. " Democracy in Amer- 
ica," vol. I, p. 183. For further discussion of the weakness of federal government, 
see De Tocqueville, ch. 8, especially pp. 141, 156, 173, 176, 181, 183; also Dicey, 
"Law of the Constitution" (second ed.), p. 158; Boutmy, "fitudes de Droit con- 
stitutionnel," pp. 156-158; Le Fur und Posener, " Bundesstaat und Staatenbund," 
sec. 78. Bryce sums up the "faults" of federal government as follows: 

1. Weakness in the conduct of foreign affairs. 

2. Weakness in home government, that is to say, deficient authority over the 

component states and the individual citizens. 

3. Liability to dissolution by the secession or rebellion of states. 

4. Liability to division into groups and factions by the formation of separate 

combinations of the component states. 



234 



FORMS OF GOVERNMENT 



Future of 
Federal 
Govern- 
ment 



Concerning the future of federal government there is, 
of course, a difference of opinion. Some writers maintain 
that it is only a transitory form and will ultimately give 
way to the unitary form, just as confederate government 
has nearly everywhere been superseded by the federal 
system. It was established, its critics assert, out of sheer 
pressure of external necessity rather than from its own 
inherent excellence; and it marks merely a transition stage 
through which many states have been obliged to pass 
in order to attain a more perfect organization/ But this 
pressure having been removed, and the preliminary stage 
having been passed through, the principal purposes of 
federal government will have been accomplished, and it 
will give way to a more efficient system — one better 
adapted to the conditions and needs of the present 
civilization. 



5. Want of uniformity among the states in legislation and administration. 

6. Trouble, expense, and delay due to the complexity of a double system of legis- 

lation and administration. "The American Commonwealth," ch. 28. 

* This is the opinion of Held, Rivier, Freeman, Dicey, Leacock, and others. Lea- 
cock asserts that " in proportion as economic progress results in industrial integration 
federal government is bound to give way. It is destined finally to be superseded by 
some form of really national and centralized government, occupying at its own dis- 
cretion whatever part of the total economic and industrial field it may see fit to occupy, 
untrammeled by the network of a written constitution and the jugglery of judicial 
interpretation." " Limitations of Federal Government," Proceedings of the Ameri- 
can Political Science Association, 1908, p. 52. The weakness of federal govern- 
ment, observes Dicey, springs from two different causes : first, the division of powers 
between the central government and the states ; second, the distribution of powers 
among the different branches of the national government. The first is inherent in 
the federal system, the second is not. Moreover, a federal system can flourish only 
among communities imbued with a legal spirit and trained to reverence the law. 
Federalism substitutes litigation for legislation, and no nation which cannot ac- 
quiesce in the finality of possibly mistaken judgments is fit to form part of a federal 
state. "Law of the Constitution," pp. 158, 166, 167. For a contrary view, see 
Le Fur and Posener, op. cit., p. 332, who assert that the facts of history contra- 
dict the statement that the federal system marks a mere transitory stage from the 
confederate to the unitary state ; on the contrary, in several instances, notably in 
the cases of Germany, Mexico, and Brazil, unitary states have adopted the federal 
system because of its manifest advantages over unitary government. 



THE TEST OF A GOOD GOVERNMENT 235 

V. THE TEST OF A GOOD GOVERNMENT 

Some writers have endeavored to lay down certain 
general principles concerning the best form of government 
for all societies and all conditions of men. Others have 
adopted the view of the poet: 

" For forms of government let fools contest, 
That which is best administered, is best." * 

We are safe in saying that no single form of government Adapta- 
is adapted to all conditions and stages of society. In de- oovern- 
termining what are the characteristics of the best govern- ™.®°* *° 
ment for any particular society we must take into consid- stances 
eration the stage of development which the society has 
attained, the intelligence and political capacity of the people, 
their history and traditions, their race characteristics, and 
a variety of other elements. "To attempt," says John 
Stuart Mill, "to say what kind of government is suited for 
every known state of society would be to compose a treatise 
on political science at large." ^ Monarchy is undoubtedly a 
desirable system for certain purposes; aristocracy is better 
adapted to certain others; while democracy is still better 
suited to other societies. Universal suffrage may be well 
suited to certain stages of society, while in others it would 
lead to a breakdown of government. Federal government 
is excellently adapted to certain stages of political de- 
velopment, while unitary government is better suited to 
others. Confederate government and even theocracies, 
as we have tried to show, have their places in the develop- 
ment of the state. No single form of government is adapted 
to all societies any more than a suit of clothes can be made to 
fit all men. The system best suited to Sparta was not the 
best for Athens ; what is best for a large empire is not neces- 
sarily the best for a state of small area. Whatwas the best 

' Pope's philosophy was, as Hamilton said, a "political heresy," since a bad govern- 
ment can hardly be well administered, while a good one may be badly adminstered. 
* "Representative Government," p. 42. 



236 FORMS OF GOVERNMENT 

for England in the time of the Tudors is not the best for 
England to-day. If mere security of life and property are 
the main objects to be attained, then a very different kind 
of government will suffice from that which is necessary 
when the promotion of the social well-being of the people 
is considered a necessary object. "If," says Lieber, "the 
object is to reform and reorganize the debased and nerve- 
less population of a large country in a tropical climate as 
that of Egypt, the government must essentially differ from 
that of an industrial people who, like the Dutch, must 
battle with the sea." ^ Government is like a house which 
must be adapted in construction to its peculiar purposes 
and needs. The most that can be done is to lay down a 
few general principles, and these will be determined by the 
point of view or prejudices of the writer. Alexander 
Hamilton declared that the "true test of a good govern- 
ment" was its "aptitude and tendency to produce a good 
administration." ^ John Stuart Mill said "the first element 
Mill's of a good government" was the "promotion of the virtue 
and intelligence of the people." The first question to be 
considered, he said, was "how far does the government 
tend to foster the moral and intellectual qualities of the 
citizens?" The government which does this best, he 
maintains. Is likely to be the best in other respects.^ The 
main criterion of a good government, in other words, is 
the degree to which it tends to increase "the sum of good 
qualities" in the governed, collectively and individually, 
rather than the efficiency of the government itself as an 
administrative body. 

» " Political Ethics," vol. I, p. 313. * " The Federalist," No. 66. 

^ See his " Representative Government," ch. 2. 



Test 



CHAPTER Vin 
SOVEREIGNTY 

Suggested Readings: Austin, "Jurisprudence," Lect. VI; Bliss, 

"On Sovereignty," chs.6-8; Bluntschli, "Allgemeine Staatslehre," 
bk. VII, chs. 1-3; BoREL, "Etude sur le Souverainete de I'Etat 
federatif"; Brie, "Theorie der Staatenverbindungen," sec. 28 ff.; 
Brown, "The Austinian Theory of Law," chs. 3, 5; Bryce, "The 
Nature of Sovereignty," in his "Studies in Jurisprudence and His- 
tory," vol. II; Burgess, " Political Science and Constitutional Law," 
vol. I, bk. II, ch. i; Constant, "Politique constitutionnelle," vol. I, 
ch. i; Dewey, "Austin's Theory of Sovereignty," "Political Science 
Quarterly," vol. IX; Dicey, "Law of the Constitution," Lect. II, 
also his "Law and Public Opinion," Lect. I; Dock, "Der Souverani- 
tiits-begriff"; Esmein, "Droit constitutionnel," tit. II, ch. 2; Froe- 
bel, " Theorie der Politik," chs. 5 and 6; Gareis, "Allgemeine Staats- 
lehre," in Marquardsen's " Handbuch," vol. I, sec. 10; Gerber, 
" Grundziige eines Systems des deutschen Staatsrechts," sees. 7-13; 
Green, "Political Obligations," pp. 80-136; Haucke, " Bodin, eine 
Studie liber den Begriff der Souveranitat "; Holland, "Elements of 
Jurisprudence," pp. 43-48, 321-323; Jellinek, "Recht des modernen 
Staates," bk. V, ch. 14; also his " Lehre von den Staatenverbindun- 
gen," pp. 21-58; Lewis, "Use and Abuse of PoHtical Terms," pp. 
41-57; Lowell, "Essays on Government," No. 5; Maine, "Early 
History of Institutions," Lects. XII, XIII; McKechnie, "The State 
and the Individual," chs. 4, 10; Merriam, "History of Sovereignty 
since Rousseau," ch. i; Meyer, "Deutsches Staatsrecht," sec. 6; 
Mulford, "The Nation," ch. 8; Oppenheim, "International Law," 
vol. I, pt. I, ch. i; Pollock, "History of the Science of Politics," ch. 
4; Pradier-Fodere, "Principes generaux de Droit de Politique," 
etc., ch. 8; Rehm, "Allgemeine Staatslehre," in Marquardsen's 
"Handbuch," Einleitungsband, sees. 10-16; Ritchie, "The Con- 
ception of Sovereignty," " Annals American Academy of Political 
and Social Science," vol. I; also his "Darwin and Hegel," ch. 8; 
SiDGWiCK, "Elements of Politics," ch. 21; Waitz, "Grundziige der 
PoUtik," pp. 153-219; Willoughby, "Nature of the State," chs. 9, 
11; Wilson, "An Old Master and Other Essays," ch. 3. 

237 



238 



SOVEREIGNTY 



Sover- 
eignty the 
most Dis- 
tinctive 
Mark of 
the State 



The 

Term 



I. DEFINITIONS AND DISTINCTIONS; LEGAL VERSUS POLITI- 
CAL sovereignty; DE facto versus DE jure SOVER- 
EIGNTY 

The one mark which fundamentally distinguishes the 
state from all other human associations is supremacy of will 
and action — the supreme power to command and enforce 
obedience. It is not enough that the state should have a sin- 
gle collective will — other associations have that — but its 
will must dominate all other wills and override them in case 
of conflict. There is in every independent political com- 
munity not in the habit of obedience to a superior, as Sir 
Henry Maine has observed, some single person or some com- 
bination of persons which has the power of compelling other 
minds to do exactly as it pleases, and, he adds, this person or 
agency may be found as certainly as the center of gravity in 
a mass of matter.^ To this power, legally speaking, all in- 
terests are potentially subject, and all wills subordinate. 
We call this attribute or power sovereignty. The study of 
its nature and characteristics constitutes one of the most 
important, if not the most important, topic in political 
science.^ 

The term " sovereignty " (souve'rainete) is derived 
from the Latin superanus (supreme, sovereign), and 
was first employed by Bodin in his celebrated work 
"De la Republique," published in 1576.^ The idea, how- 
ever, is as old as Aristotle.^ Since Bodin first intro- 

' "Early History of Institutions," p. 349. 

* Cf. Willoughby, "Nature of the State," p. 185. 

* See Schulze, "DeutschesStaatsrecht," vol. I, sec. 16; Bluntschli, "Allgemeine 
Staatslehre," bk. VII, ch. i; also his " Geschichte der neueren Staatswissen- 
schaften," p. 32. 

* See his " Politics," III, ch. 7. There is no exact equivalent in the Ger- 
man language for the term sovereignty, iht i&vms" Herrschaft," " Obergewalt," 

" Staatsgewali," and "Siaatshoheit" being variously used, though there is a shade 
of difference between them. Thus "Obergewalt" rather signifies internal sov- 
ereignty; "Staatshoheii" denotes dignity and majesty; " Staatsgewalt," power 
without reference to dignity, etc. 



DEFINITIONS AND DISTINCTIONS 239 

duced the term into the literature of political science, the 
word and the idea, observes Bluntschli, have exercised a 
vast influence on the development of constitutions and on 
the whole politics of modern times/ 

Definitions of sovereignty, like definitions of the state, Defini. 
are almost infinite in number. Bodin, the first writer *^°"' 
to employ the term, defined it as "the summa in cives ac 
subditas legibusque soluta poiestas" — the supreme power 
of the state over citizens and subjects, unrestrained by 
law. Grotius, who wrote half a century later, defined it 
as "the supreme political power vested in him whose acts 
are not subject to any other and whose will cannot be over- 
ridden." ^ Blackstone conceived it to be "the supreme, ir- 
resistible, absolute, uncontrolled authority in which the jura 
siimmi imperii reside." ^ Jellinek has defined it as "that 
characteristic of the state in virtue of which it cannot be 
legally bound except by its own will or limited by any other 
power than itself." * The French publicist Duguit defines 
it simply as the power of willing and commanding.^ Bur- 
gess characterizes it as "original, absolute, unlimited 
power over the individual subject and over all associations 
of subjects." * Again he calls it "the underived and inde- 
pendent power to command and compel obedience." ' 

1 Op. cit., bk. VII, ch. I. 

* "De Jure Belli et Pads," bk. I, ch. 3, Whewell's ed., p. 112. 

'"Commentaries on the Laws of England," Chase's ed., p. 14. Justice 
Story of the United States defined it in almost the same language — see his " Com- 
mentaries on the Constitution of the United States," vol. I, sec. 207. 

^"Lehre von den Staatenverbindungen," p. 34; also his "Recht des mod. 
Staates," pp. 421 ff. 

' "Droit constitutionnel," p. 117. 

' "Political Science and Constitutional Law," vol. I, p. 52. 

' "Political Science Quarterly," vol. Ill, p. 128. Other definitions are the fol- 
lowing: "Sovereignty is that power which is neither temporary nor delegated, nor 
subject to particular rules which it cannot alter, nor answerable to any other power 
on earth," Pollock, " Science of Politics," p. 49 ; " Sovereignty is the daily operative 
power of framing and giving eflacacy to the laws," Wilson, " Old Master and Other 
Essays," p. 81 ; " Sovereignty is the supreme will of the state," Willoughby, "Nature 
of the State," p. 280, see also his " American Constitutional System," p. 4. For other 



240 



SOVEREIGNTY 



Titular 
V. Actual 
Sover- 
eignty. 



Legal V. 
Political 
Sover- 
eignty. 



Before proceeding with a discussion of the attributes 
of sovereignty it will be well for us to differentiate between 
the several meanings which the term has come to possess. 
In the first place, we may note the distinction between 
titular and actual sovereignty. Titular sovereignty is 
the supremacy fictitiously attributed to a ruling prince, 
who personifies the power and majesty of the state and in 
whose name the government is conducted, the real sover- 
eignty being in other hands. Thus the crowned heads of 
Europe are officially designated as "sovereigns," though of 
course they are only such in a nominal or titular sense. 

Again, we must distinguish between legal and political 
sovereignty. The former represents the lawyer's concep- 
tion of sovereignty, that is, sovereignty as the supreme law- 
making power. The legal sovereign, therefore, is that 
determinate authority which is able to express in a legal 
formula the highest commands of the state; that power 
which can override the prescriptions of the divine law, 
the principles of morality, the mandates of public opinion, 
etc. This is the only sovereignty recognized by the courts. 
Behind the legal sovereign, however, is another power, 
legally unknown, and incapable of expressing the will of the 
state in the form of legal command, yet, withal, a power to 
whose mandates the legal sovereign must in practice bow 
and whose will must ultimately prevail in the state. This is 
the political sovereign. In a narrower sense the electorate 
constitutes the political sovereign, yet in a wader sense it may 
be said to be the v/hole mass of the population, including 
every person who contributes to the molding of public opin- 
ion.^ Powerful as it is, however, it cannot itself express its 

definitions see Gareis, " Allgemeine Staatslehre," sec. 10; Austin, "Jurisprudence," 
Lect. 6; Bornhak, "Allgemeine Staatslehre," p. 9; Bluntschli, "Allgemeine Staats- 
lehre, bk. VII, ch. I. 

^ "Thus," says Herbert Spencer, "that which from hour to hour in every country 
governs despotically or otherwise produces the obedience, making political action 
possible, is the accumulated and organized sentiment felt towards inherited institu- 
tions, made sacred by traditions ; . . . hence it is undeniable that, taken in its widest 



LEGAL VERSUS POLITICAL SOVEREIGNTY 241 

will in the form of a legal rule, except where the principle 
of the pure democracy prevails, though it may command the 
legislature to do its bidding, and if the command is clearly 
pronounced and fully understood, it will not be lightly dis- 
regarded. 

Where the will of the legal sovereign and the political The Legal 
sovereign conflict, the former must, however, take prece- ^^'^""e'^ 
dence, since only that which has been embodied in legal 
form will be enforced by the courts, however much more in 
accordance with the principles of expediency or abstract 
justice the mandate of the political sovereign may seem to 
be. The legal sovereign, observes a well-known writer, 
is the lawyer's sovereign qua lawyer, the sovereign beyond 
which lawyers and courts refuse to look. For the lawyer a 
law may be good law, legally, though passed by a parlia- 
ment which has been condemned by the political sovereign, 
the electorate. With the wishes or feelings of the electors 
the lawyer as lawyer has nothing to do.* He may take into 
consideration their opinions and wishes, but until the latter 
have been embodied in a written legal command they are 
for him mere hrutum fulmen. James Bryce has remarked 
that the distinction between legal and political sovereignty 
is largely the result of the difl^erence between the juristic 
and the popular conception of sovereignty. "To an ordi- 
nary layman," he says, " the sovereign is that person or body 
of persons which can make his or their will prevail in the 
state, who is acknowledged to stand at the top, who can 
get his own way and make others go his. For the lawyer, 
however, a more definite conception is required. To him 
the sovereign is no other person or body than him to whose 
directions the law attributes legal force, the person or body 
in whom resides as of right the ultimate power of laying 

acceptation, the feeling of the community is the sole source of political power." 
(Quoted by Woodrow Wilson in "Old Master and Other Essays," p. 72.) 

^ Ritchie, "Annals of the American Academy of Political and Social Science," vol. 
i, p. 401. 

POL. SCI. — 16 



of the Dis- 
tinction 



242 SOVEREIGNTY 

down general rules. This person or body is the legal sover- 
eign and represents the juristic conception." ^ 
Criticism Some Writers reject the distinction between legal and 
poHtical sovereignty on the ground that it seems to involve 
the recognition of a dual sovereignty in the state.' A little 
reflection, however, will show that the distinction between 
legal and political sovereignty does not rest upon the princi- 
ple of a divided sovereignty, but rather upon the distinc- 
tion between two difl^erent manifestations of one and the 
same sovereignty through difl^erent channels. As has 
been said, the one may not harmonize with the other, 
that is, the expressed will of the legal sovereign may not be 
that which the political sovereign has commanded, in 
which case the legal sovereign ought to be reorganized or 
reconstituted by a new election, otherwise the will of the 
electorate cannot be made effective. This is nothing more 
than saying that law ought to conform to public opinion 
when properly expressed ; that the legislator ought to obey 
the mandate of the electorate ; and that when he does not, 
the electorate and the legislature are out of harmony and 
should be " reharmonized " by new elections. The problem 
of good government, says Professor Ritchie, is largely the 
problem of the proper relation between the legal and the ul- 
timate political sovereignty.^ Of course, where the principle 
of the pure democracy prevails, the possibility of this diver- 
gence between the will of the legal and political sovereigns 
is eliminated, for under such conditions the two are identi- 
cal. In a pure democracy the expressed will of the elec- 
torate is not mere opinion or mandate, but law itself. Ordi- 
narily, however, the legal sovereign is organized separate 

* "Studies in History and Jurisprudence," vol. II, p. 505. 

* Sidgwick, for example, in his "Elements of Politics," App. A. 
' "Annals of the American Academy of Political and Social Science," vol. I, p. 

402. Cf. also McKechnie: "The will of the legal sovereign is or should be the au- 
thorized embodiment or manifestation of the will of the political sovereign. If the 
popular will is accurately expressed by the legal sovereign, the power of the people 
is effective, otherwise it is not." "The State and the Individual," p. 131. 



LEGAL VERSUS POLITICAL SOVEREIGNTY 243 

and distinct from the political sovereign, and is either 
some determinate organ like the British Parliament or a 
constituent body called into existence for the specific pur- 
pose of formulating and expressing the sovereign will. 

The distinction between legal and political sovereignty The Dis- 
is most prominent in those countries like Great Britain Great'" ^ 
whose constitutional enactments proceed from the legisla- Britain 
ture, where, in consequence, there is no legal distinction be- 
tween constitutional and statute law/ In Great Britain 
the Parliament is both the ordinary legislative body and 
the constituent assembly. It is legally omnipotent and 
subject to no restraints except those of a moral and physi- 
cal character. There is no person or body of persons in 
Great Britain capable of making rules which can override or 
derogate from an act of Parliament. The British Parlia- 
ment is so omnipotent, legally speaking, says Dicey, that 
it can adjudge an infant of full age; it may attaint a man 
of treason after death ; it may legitimize an illegitimate child, 
or, if it sees fit, make a man a judge in his own case.^ By the 
act of 1716 it did what only a sovereign body can do, when 
it prolonged its own existence from three to seven years. 
It can alter the constitution by the same legal processes 
that are followed in the enactment of an ordinary statute. 

No court will listen to an argument against the va- TheSover- 
lidity of an act of Parliament, even though it be contrary p^"JJ.°' 
to the most sacred prescriptions of the constitution. It is ment 
clear, therefore, that the legal sovereignty of the British 
state is in the Parliament, and hence there is no legal 
authority in existence which can restrain it or override its 
acts.' 

' On the distinction between legal and political sovereignty, between Staats- 
souverdnitdt and Rechtssouverdnitat, see Krabbe, " Die Lehre der Rechtssouve- 
ranitat," especially ch. i. 

^ "Law of the Constitution," Second ed., p. 45. 

' Sidgwick is one of the few writers who is disposed to question the legal omnipo- " 
tence of the English Parliament. He contends that its sovereignty was not generally 
accepted until a comparatively recent date, and that even as late as the eighteenth 



244 



SOVEREIGNTY 



The Sover- 
eignty of 
the Elec- 
torate 



Limita- 
tions upon 
Sover- 
eignty 



Yet there Is a sense in which the EngHsh Parliament is 
not sovereign. There is a power above Parliament whose 
mandates it must obey and whose will must ultimately 
prevail in all governmental matters. This is the will 
pronounced by the electorate at a general parliamentary 
election. The lawyers do not recognize this sovereignty 
and the courts do not take notice of it, and even the Par- 
liament itself might for a time lawfully resist it, but in the 
end, if the electorate insists upon obedience, Parliament 
must bow before the popular will and enact its commands 
into law. In this sense the electorate and not Parliament 
is sovereign,^ 

While attempting to justify the existence of that sover- 
eignty which has no legal basis, we must not, however, over- 
look the limitations and conditions under which it is entitled 
to recognition. The "general will," the "sovereignty of the 
people," or whatever we may choose to call the controlling 
power behind the organ through which the will of the state 
is given legal formulation, are rather vague and loose 
expressions and when not used with proper discrimination 
lead to misconception and even to mischief. As Professor 
Sidgwick has well said, "There is a certain sense in which 
the mass of the people in any community may be said to 
be the ultimate depository of supreme political power, 
though it is misleading to say that the people are every- 
where sovereign." ^ To maintain the doctrine of popular 
sovereignty without restriction is to ignore the fundamen- 

century there were to be found dicta of high judges recognizing legal limitations on 
the power of Parliament. He quotes Holt in support of the proposition that if 
Parliament should ordain that a person should be a judge in his own case the act 
would be void. "Elements of Politics," p. 28. 

' See Austin, " Jurisprudence," vol. I, pp. 252 et seq. ; Dicey, "Law of the Consti- 
tution," pp. 68-69. Cf. also Locke ("Two Treatises of Government," bk. II, ch. 11), 
who, obviously thinking of the British constitution, calls attention to the fact that while 
the legislature is the supreme power in the state it is only a "fiduciary power," since 
there still remains in the people a "superior power to remove or alter the legislature 
when they find the will of the legislature to be contrary to the will of the people." 

^ "Elements of Politics," p. 630. 



DE FACTO VERSUS DE JURE SOVEREIGNTY 245 

tal distinction between power legally exercised and power 
usurped and illegally exercised. The will of the people 
expressed otherwise than through legally constituted chan- 
nels is not sovereign any more than the unofficial opinions 
of the members of a legislative body are law/ The sover- 
eignty of the people has a meaning and is entitled to 
legal recognition only when it is the sovereignty of the 
people organized in their legislative bodies or constituent 
assemblies.^ 

In the next place a distinction may be made between the De factor 
sovereignty which is actually obeyed by the inhabitants sove"-^ 
of the state, though it may be without legal basis, and the eighty 
sovereignty which according to legal right is entitled to 
the obedience of the people, but of which in fact the bearer 
may be temporarily dispossessed or which for other reason is 
incapable of making its will prevail.^ That person or body 
of persons who is in fact dominant in the state, who for the 
time receives the actual obedience of the great mass of the in- 
habitants, who constitutes the strongest power in the state, 
is the actual or de facto sovereign, though not necessarily 
the legal sovereign. This sovereign may be a usurping 
king, a self-constituted assembly, a military dictator, or 
even a priest or a prophet; in either case the sovereignty 
rests upon physical power or spiritual influence rather 
than upon legal right. History abounds in examples of 
such sovereignties. Cromwell, after he had dissolved the 

' Compare on this point McKechnie, "The State and the Individual," pp. 131 et 
seq. 

' It is neither incorrect nor mischievous, says Sir George C. Lewis, to speak of the 
sovereignty of the people in states in which they are not sovereign, if it be done in a 
metaphorical sense to signify the moral control and influence over the legislature 
and if the distinction between legal power and moral influence be kept in mind and real 
sovereignty be not confused with figurative sovereignty. "Use and Abuse of Polit- 
ical Terms, p. 48. On the proper use of the terms "sovereignty of the people" 
and "sovereignty of the general will," see Bluntschli, "Allgemeine Staatslehre," 
bk. VII, ch. i; and Green, "Political Obligations," pp. 98-104. 

' On the distinction between legal sovereignty and the "sovereignty of fact," see 
Esmein, "Droit constitutionnel, " 3d ed., p. 187. 



246 



SOVEREIGNTY 



Examples 
of De facto 
Sover- 
eignties 



Rights of 
De facto 
Sover- 
eigns and 
their Ad- 
herents 



Long Parliament, Napoleon, after he had overthrown the 
Directory, the English convention which offered the crown 
to William and Mary, the French assembly which made 
peace with Germany in 1871, the Southern Confederacy 
from 1 86 1 to 1865, are instances of actual sovereignties 
which rested upon no legal basis, though some of them 
ultimately became de jure sovereignties through the ac- 
quisition of a legal status. The temporary occupation of 
the part of a state's territory by a hostile army when the 
commander displaces the local authority and exacts obe- 
dience from the inhabitants is another example of de facto 
sovereignty of which history affords many instances/ In 
some of the instances cited above, the usurping sovereign 
expelled the legal sovereign from his rightful seat and by 
force compelled the obedience of the inhabitants. 

It is an established rule of pubhc law that the adherents 
of the de facto sovereign in case of a war between it and the 
de jure sovereign do not incur the penalties of treason and 
under certain limitations the obligations assumed by it in 
behalf of the country or the public acts performed by it 
will be respected by the de jure sovereign when it is re- 
stored to its rightful place. ^ It is also a rule that where 
the de facto sovereign gives evidence of his ability to main- 
tain his supremacy and command the obedience of the great 
mass of the people, he shall be morally entitled to receive 
the recognition of foreign states. Other examples of de facto 
sovereignties occur where the power of the legal sovereign 
has been superseded by the moral influence of some per- 
son, body of persons, or government. Such was the power 
wielded by the former Shoguns in Japan, and such is the 

* See the decisions of the United States Supreme Court in U.S. v. Rice, 4 Whea- 
ton; and Fleming v. Page, 9 Howard. 

^ See the case of Thorrington v. Smith, decided by the U.S. Supreme Court in 
1868, 8 Wallace, p. i. In this case the Supreme Court held, however, that the South- 
ern Confederacy was not an example of a de facto sovereign in the sense that its acts 
or obligations were binding upon the states or the national government, after the 
dissolution of the Confederacy. 



DE FACTO VERSUS DE JURE SOVEREIGNTY 247 

power exercised by the British government in Egypt to- 
day. 

Dejure sovereignty, on the other hand, has its foundation De jure 
in law, not in physical power, and the person or body of e°Jnty 
persons by whom it is exercised can always show a legal 
right to rule/ This is the sovereignty which the law recog- 
nizes and to which it attributes the right to govern and 
exact obedience. It does not depend for its validity upon 
obedience actually rendered, for the law assumes the obe- 
dience to be enforceable. As a matter of fact it may not 
be the actual sovereign, for it may be expelled, as has been 
said, from its rightful place or may have temporarily 
disappeared through disorganization or disintegration; but, 
however this may be, it has legal right on its side and is 
lawfully entitled to command and exact obedience. Mani- 
festly, every consideration of expediency, however, requires 
that the sovereign in actual control should be legally en- 
titled to rule, that is, physical power and mastery ought to 
rest upon legal right. In reality the sovereign who succeeds 
in maintaining his claim to rule usually becomes in the 
course of time the legal sovereign, through the acquies- 
cence of the people or the reorganization of the state, 
somewhat as actual possession in private law ripens into 
legal ownership through prescription. On account of the Conver- 
manifest advantages which flow from the exercise of power Actual 
resting on strict legal right rather than upon mere physical s°^^/-. ^ 

° . . . . eigntymto 

force, the new sovereign sometimes has his de facto claim Legal Sov- 
converted into a legal right by election or ratification. "^"*^ 
This was done, e.g., by William the Conqueror in 1066 and 
by Napoleon III of France in 1852. Such an act on the 
part of the new sovereign by thus establishing a legal 
basis for his power strengthens his moral claim to the obe- 
dience of the people and diminishes the danger of conspir- 
acies and rebellions on the part of the adherents of the 

' For other examples of "actual " sovereignties, see Bryce, "Studies in History and 
Jurisprudence, vol. IL op. 513-5116. 



248 



SOVEREIGNTY 



displaced sovereign. There is, as Bryce well observes, a 
natural and instinctive opposition to submission to power 
which rests only on force.* 



Perma- 
nence of 
Sover- 
eignty 



Exclu- 
sivenesB 



All-com- 
prehen- 
siveness 



II. THE ATTRIBUTES OF SOVEREIGNTY 

We may enumerate the distinguishing attributes of 
sovereignty as permanence, exclusiveness, all-comprehen- 
siveness, absoluteness, inalienability, and unity. 

By the quality of permanence or perpetuity (Ewigkeit, as 
the Germans describe it), we mean that quality in virtue of 
which the sovereignty of the state continues without in- 
terruption so long as the state itself exists. It does not 
cease with the death or dispossession of the temporary 
bearer, or the reorganization of the state, but shifts imme- 
diately to a new bearer, as the center of gravity shifts 
from one part of a physical body to another whenever it 
undergoes external change.^ 

By exclusiveness we mean that quality in virtue of which 
there can be but one supreme power in the state, entitled 
to the obedience of the inhabitants. To hold otherwise 
would be to deny the principle of the unity and organic 
nature of the state and to recognize the possibility of an 
imperium in imperio.^ 

Sovereignty is coextensive in its operation with the 
jurisdiction of the state and comprehends within its scope 

'"Studies in History and Jurisprudence," vol. II, p. 516. Austin ("Jurisprudence," 
lect. VI) refuses to recognize the distinction between de jure and de facto sovereignty, 
because, as he says, the adjectives " lawful " and "unlawful " cannot be applied to 
the term "sovereignty." The only law, he declares, by which a person or body of 
persons can be sovereign is its own law, its own command or will, and hence to say 
that a person or body is the de jure sovereign is tantamount to saying that it is legal 
because it declares itself so to be. According to Austin's view governments may be 
de facto or de jure, but the latter terms are inapplicable to sovereignty. Compare Mer- 
riam, "History of Sovereignty since Rousseau," p. 147. 

* Compare Von Mohl, "Encyklopadie der Staatswissenschaften," sec. 16; 
Jellinek, "Staatenverbindungen," p. 35. The idea of continuity is expressed by 
the old French proverb, "Le roi est mort; vive le roi." 

' Von Mohl, op. cit., pp. 118-119. Cf. also Burgess, op. oil., vol. I, p. 52. 



THE ATTRIBUTES' OF SOVEREIGNTY 249 

all persons and things in the territory of the state. The 
modern state does not recognize the existence of any staatlos 
person within its jurisdiction. For reasons of pubHc poHcy 
and international comity civilized states voluntarily re- 
linquish the exercise of jurisdiction over the diplomatic 
representatives of foreign states residing within their ter- 
ritories, but this rule of extraterritoriality, as it is called, is 
no exception to the principle stated above. The fact that 
states have until comparatively recent times declined to 
recognize the principle of extraterritoriality, and that even 
now any state may expel a diplomatic representative from 
its territory and thus deprive him of his immunity, are 
evidences of the truth of the proposition that the sover- 
eignty of the state is all-embracing and all-comprehensive. 

By the quality of absolutism we mean simply that sover- Absoiu- 
eignty is legally unlimited, that is, it is subject to no higher **^™ 
power — an attribute which results from the very nature 
of the thing itself. To hold otherwise would be to assume 
the existence of a higher power by which the sovereign is 
limited.^ 

By the quality of inalienability we mean that attri- inaiiena- 
bute of the state by virtue of which it cannot cede '^^ 
away any of its essential elements without self-destruc- 
tion.^ Sovereignty can no more be alienated, says Lieber, 
than a tree can alienate its right to sprout, or a man can 
transfer his life or personality to another without self- 
destruction.' Rousseau holds the same view, though he 
admits that power may be transferred.* A few writers, 
however, take the contrary view. Professor Ritchie, for 
example, declares that the doctrine of inalienability is 

' Compare Von Mohl, op. cit., p. 120. 

' See Bateman," Political and Constitutional Law," sec. 125. 

* "Political Ethics," vol. I, p. 219; cf. Duguit, "Droit constitutionnel," p. 131. 
The doctrine of inalienability of sovereignty is asserted in the French constitutions 
of 1 791 (Tit. Ill, sec. I), 1793 (Decl. 25), and 1848 (ch. i, sec. i). 

* "Contrat social," bk. II, ch. i. 



250 



SOVEREIGNTY 



Impre- 
scripti- 
bility 



belied by the facts of history.^ Of course it is not meant 
that where a state parts with a portion of its territory it 
retains its sovereignty over the territory ahenated. His- 
tory abounds in examples of territorial cessions involving 
the alienation of the sovereignty of the state over the ter- 
ritory ceded, but that is a different thing from saying that 
the state may cede away its sovereignty as such; that is, 
part with a constituent element without which it could no 
more exist than a man without heart or blood. Nor does 
the principle of inalienability mean that the person or per- 
sons in whom the sovereignty is for the time reposed may 
not abdicate. The British Parliament, for example, might 
dissolve itself without making any provision for calling 
another Parliament, or the Czar of Russia might voluntarily 
relinquish his rights of sovereignty in favor of a Duma, as 
he seems to have in fact lately done; but there would not be 
in either case an alienation, but only a shifting of the re- 
pository or abiding place. 

Implied in the principle of inalienability of sovereignty 
is that of imprescriptibility, according to which sover- 
eignty cannot be lost by mere lapse of time, as prop- 
erty in land may be lost by prescription at private 
law.' There is an old doctrine held by some writers 
that originally the people were sovereign everywhere, but 
through the long and uninterrupted usurpation of sovereign 
power by kings it was gradually lost to the people by opera- 
tion of the principle of prescription. But the theory has 
little evidence to support it. 



Sover- 
eignty 
cannot be 
Limited 



III. THE ABSOLUTISM OF SOVEREIGNTY; THEORY OF 
LIMITATIONS 

Among the characteristics of sovereignty which merit a 
more extended consideration than we have given in the 

' Note to the English translation of Bluntschli's "Allgemeine Staatslehre " 
(Theory of the State, 2d ed.), p. 496. 
* Compare Duguit, op. cit., p. 133. 



THEORY OF LIMITATIONS 251 

preceding section is the quality of absolutism. Sover- 
eignty cannot be limited; it is an original, not a de- 
rived power. As it is the supreme power in the state, 
there cannot, legally speaking, be any authority above it, 
and to speak of it as being limited by some higher power 
is a contradiction of terms. Sovereignty, as Jellinek re- 
marks, can be bound only by its own will, that is, it can 
only be self-limited.^ 

While from the very nature of the case ' sovereignty Doctrine 
cannot be subject to legal restrictions, many writers rec- Limita-^ 
ognize the existence of certain moral limitations on the **°°s 
power of the sovereign, arising from the natural and 
inherent rights of man — rights which, according to the 
views of some authorities, exist independently of the state 
and cannot therefore be restricted or lirnited by it.^ Thus, 
observes a well-known writer, "although . . . some of 
those who have written on sovereignty described the sov- 
ereign as being subject to no restraint whatever, his sole will 
being absolutely dominant over all his subjects, there has 
never really existed in the world any person or even any 
body of persons enjoying this utterly uncontrolled power, 
with no external force to fear and nothing to regard except 
the gratification of mere volition." ^ The same assertion is 
made by Bluntschli, who declares that "there is no such 
thing on earth as absolute independence. . . . Even the 
state as a whole is not almighty, for it is limited externally by 
the rights of other states and internally by its own nature 
and by the rights of its individual members." * 

Some writers maintain that the sovereignty of the state is Divine 
limited by the prescriptions of the divine law, or by the power ^^^j^ 
of some superhuman authority. The Russian publicist Mar- 

* "Lehre von den Staatenverbindungen," pp. 35-36. 

^ "The vast mass of influences," says Maine, "which, for short, we may call 
moral, perpetually shapes, limits, or forbids the actual direction of the forces of 
society by the sovereign." "Early History of Institutions," p. 359, 

' Bryce, "Studies in History and Jurisprudence," vol. II, p. 523. 

* "Allgemeine Staatslehre," bk. VII, ch. i. 



252 SOVEREIGNTY 

tens, for example, in his definition of sovereignty recognizes 
in God a "legal superior" over a state otherwise "entirely 
sovereign."^ Bluntschli asserts that nations are "respon- 
sible to the eternal judgments of God" as well as to "the 
facts of history." "There is above the sovereign," says 
the German writer Schulze, "a higher moral and natural 
order, the eternal principle of the moral law." The doctrine 
that the state is absolutely supreme and incapable of do- 
ing wrong is, he says, fallacious and dangerous.^ Other 
alleged limitations on sovereignty are those arising from 
the law of nature,' the principles of morality, the teach- 
ings of religion, the principles of abstract justice, immemo- 
rial custom, long-established traditions, etc. To these have 
been added the limitations imposed by the rules of inter- 
national law, the particular restrictions imposed by con- 
ventions between states, and limitations imposed by states 
themselves by their fundamental law, such, for example, as 
the method of procedure for altering their constitutions.* 

* "For a state to be entirely sovereign," says Martens, "it must govern itself and 
acknowledge no legislative superior power but God;" quoted by Lewis, "Use and 
Abuse of Political Terms," p. 41. For an argument against the proposition that 
sovereignty is unlimited see Benjamin Constant, "Politique constitutionnelle," vol. 
I., ch. I., especially pp. 15-16. 

* "Deutsches Staatsrecht," vol. I, sec. 16. See also Von Mohl (" Encyklopadie 
der Staatswissenschaften," p. 117), who does not accept as a literal truth the Biblical 
doctrine of obedience to God rather than man, though he attaches great significance 
to the idea. 

^ Speaking of the universal binding force of the law of nature, Blackstone said, 
"No human laws are of any validity if contrary to this, and such of them as are valid 
derive all their force and all their authority, mediately or immediately, from this 
original." " Commentaries," ed. by Chase, pp. 5-6. 

* On the subject of limitations on sovereignty see Bryce, op. cit., vol. II, pp. 510 et 
seq.; Bentham, "Fragment on Government," chs. 34-36; Works, vol. I, pp. 
289-291; Ritchie, "Annals of the American Academy of Political and Social 
Science," vol. I, p. 393; Laveleye, "Le Gouvernement dans la Democratic," 
vol. I, bk. I, ch. 6; Woolsey, "Political Science," vol. I, p. 203; Sidgwick, 
"Elements of Politics," p. 623; Lowell, "Essays on Government," ch. 5 ; Dicey, 
"Law of the Constitution," pp. 70-74; Duguit, " Droit constitutionnel," pp. 122 e/ 
seq. Some French writers like Cousin, Guizot, Constant, and Royer-Collard have 
worked out a theory of the "sovereignty of reason or justice." For a discussion 



THEORY OF LIMITATIONS 253 

It must, of course, be admitted that In a certain sense Restric- 
the exercise of sovereignty is subject to restrictions. The so^r-° 
most despotic monarch respects the opinions of his eig^^ty 
subjects on certain questions and often bows to their 
wishes. Probably no sovereign, whether monarch or 
assembly, ever existed who assumed and exercised the right 
to change any law, custom, or institution at his pleasure 
without regard to the opinions of the mass of the popula- 
tion. All sovereignty, in short, must be conditioned upon 
the ready obedience or acquiescence of those over whom 
it is exercised.^ The sultan of Turkey, for example, abso- 
lute as he is, would hardly dare interfere with the religion 
of his subjects; the British Parliament, with power legally 
unlimited, would hesitate to tax the colonies, or to pass a 
decennial act, or to establish the Episcopal Church in Scot- 
land; it is doubtful if any Roman emperor would have 
dared to subvert the national religion of Rome; Louis XIV, 
who is credited with having boasted that he was the state, 
would probably never have been able to force Protestant- 
ism on his subjects. 

An examination of these limitations, however, will show SuchLimi 
that legally they are no restrictions on sovereignty at all. have^no 
The law of nature, the principles of morality, the laws of ^^s^^ 
God, the dictatesof humanity and reason, the law of nations, 
the fear of public opinion, and all the other alleged restric- 
tions on sovereignty have no legal effect, except in so far as 
the state chooses to recognize them and give them force and 
validity. They are not such limitations as the courts will 
ordinarily enforce in the decision of legal controversies. 
Thus, if the English Parliament, which is the legal sover- 
eign in the British Empire, should pass an act opposed to 

and criticism of the theory see Bluntschli, op. cit., bk. VII, ch. i ; also Merriam, 
"History of Sovereignty," ch. 5. 

^ Bryce, in the chapter on " Government by Public Opinion" in his "American 
Commonwealth," observes that "governments have always rested and must rest, 
if not on the affection, then on the reverence or awe, if not on the active approval, 
then on the silent acquiescence, of the numerical majority." 



254 



SOVEREIGNTY 



Limita- 
tions of 
Interna- 
tional 
Law 



the principles of morality or contrary to the rules of inter- 
national law, however repugnant the statute might be to 
the moral sense of the people or their ideas of justice and 
good faith, it would not be legally invalid. The courts 
would presume that Parliament did not intend to violate 
the rules of morality or the principles of international law, 
and they would not listen to an argument which rested on 
the assumption that Parliament had exceeded its author- 
ity/ If in any case the limitations of the divine law are 
recognized, the state in the last analysis must be the inter- 
preter of the divine will, so that in fact the restriction 
is nothing but a self-limitation. In other words the 
principles of morality, of justice, of religion, etc., so far as 
they constitute limitations on the sovereign, are simply 
what the consciousness of the state decides them to be, for 
there can be no other legal consciousness than that of the 
state. 

Regarding the so-called limitations on sovereignty im- 
posed by the principles of international law, we are forced 
to the same conclusion, namely, that in the last analysis 
they are nothing more than "self-limitations." ^ The 
subjects of international law are sovereign states, and in 
the last resort they must be considered as the interpreters 
of their own rights and of their obligations to other states. 
There is no higher legal power to enforce the obligations 
which the public opinion of the civilized world may declare 
to be binding upon them. States are subject only to their 
own wills, not to any outside will. Juristically speaking, 
the state has an undoubted right to refuse to be bound by 



' Dicey, "Law of the Constitution," p. 59. 

' The courts of Great Britain, e.g., hold that no principle of international law is 
enforceable in a British court until it has been formally adopted into the body of 
municipal law by an act of Parliament. See the recent case of West Rand Gold 
Mining Company v. Rex, discussed in the " American Journal of International 
Law," vol. II, pp. 223 fF. See also an article as to the American practice on this 
point, entitled "The Legal Nature of International Law," by W. W . Willoughby, 
in the "American Journal of International Law," vol. II, No. 2. 



THEORY OF LIMITATIONS 255 

a particular usage of international law, and as a matter of 
fact the courts of most countries are bound to give prece- 
dence to municipal statutes in preference to the prescrip- 
tions of international law, even though the former are 
contrary to the latter/ And so as regards the obligations 
of the state which it may have imposed upon itself by ex- 
press convention with other states. They are not legal 
limitations on the sovereign power, but conventional agree- 
ments which the state may disregard or even repudiate so 
far as its legal right to do so is concerned. The same may 
be said of the alleged limitations set by the state upon the 
manner in which its powers shall be exercised, such, for 
example, as the method of procedure which it may have 
prescribed for making changes in its own constitutional or- 
ganization. Such rules of procedure cannot be considered 
as legal restrictions upon the sovereignty of the state, and 
it is a matter of common knowledge that such provisions 
have in the past been time and again set aside for other 
methods. 

The inevitable conclusion, therefore, to which we are 
led, is that all attempts to place legal restrictions upon 
sovereignty are futile and useless. Whoever or whatever 
can impose limitations on the power of the state is itself 
the sovereign, and not until we reach that power which is 
unlimited do we come into the presence of the sovereign. 
Supreme power, limited by positive law, says Austin, is a 
flat contradiction in terms. ^ 

The doctrine of unlimited sovereignty is sometimes criti- 
cised on the ground that it leads to the legal despotism of 
the state. But granting arguendo that sovereignty may be 
limited in the interest of liberty or good government, we are 
no better off. We are still brought face to face with another 

^ It is a rule of the English and American courts, however, in such cases, to construe 
the statute, if possible, in such a way as not to violate the rule of international law. 

'"Jurisprudence," lect. VI; see also Burgess, op. cit., vol. I, p. 53. This is 
the view of such high authorities as Esmein, Markby, Holland, E. C. Clark, 
Ihering, and Funck-Brentano. 



256 SOVEREIGNTY 

sovereign, namely, that which imposes the limitation — the 
very thing from which we are seeking to escape. John Austin, 
with his usual clearness and incisiveness, stated the matter 
correctly when he said: "The power of the superior sov- 
ereign imposing the restraints on the power of some other 
sovereign superior to that superior would still be abso- 
lutely free from the fetters of positive law. For unless the 
imagined restraints were ultimately imposed by a sover- 
eign not in a state of subjection to a higher or superior 
sovereign, a series of sovereigns ascending to infinity would 
govern the imagined community, which is impossible and 
absurd." ^ 

It is difficult to see what is to be gained by trying to 
avoid such a conclusion. It is necessary to recognize in 
the state a power to which all things and all wills are po- 
tentially subject, otherwise the state is no different funda- 
mentally from the other associations and organizations 
into which mankind is grouped. But this recognition does 
not imply an admission of the moral right of the state to 
control and regulate all the interests and activities of the 
people over whom sovereign power potentially exists. In 
all modern states there is a large group of interests, a wide 
domain of human conduct, which are in fact exempt from 
all governmental interference. There is no likelihood that 
the state will ever exercise all of the power which legally 
belongs to it. Considerations of expediency, to say noth- 
ing of justice, require that in practice the greater part of 
its power should exist only in potentia, and that the indi- 
vidual should be left free from governmental control 
within a certain sphere. Any sovereign, whether monarch 
or assembly, which should attempt to exercise its un- 
doubted legal power to regulate all the interests and rela- 
tions of human life would soon be overthrown by revolution. 

It is difficult to see how the doctrine of unlimited sover- 
eignty is inconsistent with the idea of the widest liberty. 

* "Jurisprudence," Students' ed., p. 105. 



THE INDIVISIBILITY OF SOVEREIGNTY 257 

It does not require profound thinking to see that the more uniim- 
fully and completely sovereign the state, the more secure l^^^^^Z' 
and permanent must be the liberty of the people/ During compati- 
the eighteenth century the sovereignty of the state was Liberty 
generally confused with the absolutism of particular kings, 
and therefore the doctrine of unlimited sovereignty had 
few defenders except among those who, like Hobbes, were 
the apologists of certain princes who sought to rule with- 
out regard to constitutional restrictions. With the dis- 
appearance of absolutism in government and the general 
introduction of constitutionalism, however, the theory of 
the unlimited sovereignty of the state came to have more 
advocates than opponents. When the state came to be 
organized outside of the government and sovereignty was 
understood in its true light, namely, as an attribute of the 
former rather than of the latter, it became an easy matter 
to reconcile the doctrine of an unlimited sovereignty with 
that of a limited government. 

IV. THE INDIVISIBILITY OF SOVEREIGNTY 

Another characteristic of sovereignty which requires Theoiy 
more detailed consideration Is the quality of unity. Being ^^j^lded 
the highest will in the state, it cannot be divided without Sover- 
producing several wills, which is, of course, inconsistent 
with the notion of sovereignty. The existence of several 
supreme wills, each capable of issuing commands and of 
exacting obedience, would obviously result in conflicts and 
an ultimate paralysis of the state. If the several supposed 
wills were coordinate, obviously neither could be sovereign; 
if one were superior and the others subordinate, manifestly 
the former would be sovereign and the latter subject, and 
what would appear to be a division of sovereignty would 
in fact be no division. By no one has this truth been more 
forcibly set forth than by the American statesman John 

• Cf. Burgess, "Political Science and Constitutional Law," vol. I, pp. 55 ff. 

POL. SCI. — 17 



258 SOVEREIGNTY 

C, Calhoun, in his "Disquisition on Government," written 
in 1851. "Sovereignty," he declared, " is an entire thing ; to 
divide it is to destroy it. It is the supreme power in a 
state, and we might just as well speak of half a square or 
half a triangle as of half a sovereignty." ^ But this view is 
by no means universally accepted by publicists and politi- 
cal writers of to-day. The existence of a large number of 
petty states on the continent of Europe during the six- 
teenth and seventeenth centuries, which were practically, 
though not theoretically, independent, contributed to the 
spread of the popular belief in the distinction between 
part-sovereign and fully sovereign states — a distinction 
which rests in fact on the notion of a divided sovereignty.^ 
In more recent times the organization of so-called composite 
states, confederations, real unions, and federal states, and 
the establishment of such relationships as are involved in 
the creation of protectorates, have powerfully strengthened 
the divisibility theory.^ 
Dual The question of a dual sovereignty first became a con- 

eignty trovcrsy of practical politics in the United States of America 
^ *^® toward the middle of the nineteenth century. Under the 
states Articles of Confederation each member of the union expressly 
retained its own sovereignty, so that the possibility of mis- 

* Works, vol. I, p. 146. 

* Cf. Oppenheim, "International Law," vol. I, p. 105. 

' Recent political developments in various parts of the world have given rise to 
situations which in the opinion of some writers furnish instances of ambiguous sover- 
eignty. An example was formerly found in Manchuria, which is politically a part 
of China, though from 1900 to 1905 it was administered by Russia in accordance 
with treaties. Likewise Bosnia and Herzegovina have since 1878 been under the 
administration of Austria-Hungary, though under the nominal sovereignty of the 
Turkish Empire. The island of Cyprus, since 1878 nominally a part of Turkey, 
though under the administration of England, is another example. There is also 
the peculiar situation described as condominium, where two states exercise sover- 
eignty conjointly over the same territory, an example of which was the joint oc- 
cupation and administration of Schleswig-Holstein by Austria and Prussia from 
1864 to 1866. Another example is the joint sovereignty of Belgium and Prussia to- 
day over Moresnet (Kelmis). See Oppenheim, " International Law," vol. I, pp. 
220-223. 



THE INDIVISIBILITY OF SOVEREIGNTY 259 

understanding was avoided. But the constitution of the 
federal union of 1789 was silent on this all-important sub- 
ject, hence, the questions were left open as to whether 
sovereignty remained in the individual states where it had 
formerly rested, whether it was in the united state created 
by their joint agency, or whether it was divided between the 
individual states on the one hand and the union on the 
other. This casus omissus was doubtless the result of a 
compromise between the conflicting forces of particularism 
and nationalism in the convention which framed the con- 
stitution.^ 

The theory of a dual sovereignty under the American Early 
federal system was generally held by publicists in America ^p''^^"'^^ 
at the time of the adoption of the constitution, it was enun- 
ciated in the "Federalist"^ by Hamilton and Madison, 
and was adopted at an early date by the Supreme Court, 
which held that the United States was sovereign as to the 
powers which had been conferred upon it, and that the 
states were sovereign as to those which were reserved to 
them, and this view is still maintained by the court.^ It has 
received the approval of such eminent constitutional lawyers 
as Judges Cooley * and Story ^ and political writers like De 
Tocqueville, Wheaton, Halleck, Hurd, Bliss, and many 

* For the view that the founders of the republic deliberately evaded the responsi- 
bility of formulating their will on this important question rather than insist upon an 
answer that probably would have resulted in the rejection of the constitution, see an 
article by A. W. Small, entitled, " The Beginnings of American Nationality, " in the 
"Forum" for June, 1895. For a contrary view, see Willoughby, "Nature of the 
State," p. 271. 

* See Nos. 32 and 39. The sovereignty, said Madison, is divided between the 
states on the one hand and the union on the other, so that " the whole sovereignty 
consists of a number of partial sovereignties." 

' Chisholm v. Georgia (1792), 2 Dallas 435. In this case the Supreme Court de- 
clared that " the United States are sovereign as to all the powers of government actu- 
ually surrendered by the states, while each state in the union is sovereign as to all 
powers reserved." See also Ware v. Hylton, 3 Dallas 232 ; and the License cases, 5 
How. 504, 538. 

* " Constitutional Limitations," p. 4. 
' " Commentaries," sees. 207-208. 



26o 



SOVEREIGNTY 



Calhoun's 
Theory 



Views of 

Foreign 

Publicists 



Others.^ "There is no question," says Hurd, "that the 
statesmen of all sections who made the constitution of the 
United States understood that political sovereignty was 
capable of division according to its subject and powers."' 
Their view was that the sovereignty was divided between 
what they called the "nation" on the one hand and the 
states on the other; that is, each was sovereign within the 
sphere marked out for it by the constitution of the union. 
This theory of a dual sovereignty was vigorously combated 
by the Southern statesman John C. Calhoun, in his "Dis- 
quisition on Government," where, as already stated, he 
enunciated the doctrine that sovereignty was a unit, in- 
capable of division, and that it existed unimpaired and in 
its entirety in the separate states composing the union. 
The question, so far as the United States was concerned, 
was finally settled by the armed conflict of 1861-1865, but 
there is still a difference of opinion among able writers as 
to whether the power which is left to the states is sover- 
eignty or mere local autonomy.^ 

Among foreign publicists we find the same diversity of 
opinion regarding the divisibility of sovereignty. The Eng- 
lish historian Freeman asserts that "the complete division 



'For further discussion of this subject, see Merriam, "American Political 
Theories," ch. 7, also his "History of Sovereignty," pp. 163 S.; Willoughby, 
"American Constitutional System," ch. 2; McLaughlin, "American Historical Re- 
view, " April, 1900; see also a good recent discussion in the "Zeitschrift fiir die ge- 
samte Staatswissenschaften," 1909, pp. 77 fF. Mr. A. L. Lowell asserts emphatically 
that "there can exist within the same territory two sovereigns issuing commands to 
the same subjects touching different matters." "Essays on Government," p. 219. 
James Bryce maintains that legal sovereignty may be "divided between coordinate 
authorities." "Studies in History and Jurisprudence," vol. II, p. 508. 

' "Theory of the National Existence," p. 295. For a somewhat detailed con- 
sideration of the question of the divisibility of sovereignty, see Bliss, " On Sov- 
ereignty " chs. 7-8. 

^ Woodrow Wilson attributes to the individual members of the American union the 
character of real states, although he says their sphere is limited by the presiding sov- 
ereign powers of a state superordinated to them. " Old Master and Other Essays," 
p. 94. The constitution of Mexico (art. 40) expressly declares the individual states 
to be "sovereign" in all that concerns their internal affairs. 



THE INDIVISIBILITY OF SOVEREIGNTY 261 

of sovereignty we may look upon as essential to the absolute 
perfection of the federal ideal." ^ The French scholars De 
Tocqueville, Esmein, and Duguit have expressed substan- 
tially the same views ;^ and many German publicists support 
the theory so far as it relates to sovereignty in federal states. 
The "father "of the divisibilitydoctrine in Germany was the 
noted scholar Waitz, and among his followers may be men- 
tioned the names of Von Mohl, Bluntschli, Brie, Wester- 
kamp, Jellinek, Bornhak, Schulze, Ruttiman, and others.^ 
After the founding of the empire, however, and the triumph 
of nationalism over particularism, the theory of a divided 
sovereignty found less favor among the German jurists and 
philosophers, and the unity theory has come to have more 
advocates than formerly.* According to the latter view, 
sovereignty in the German Empire reposes in the totality 
of the German states regarded as a single personality 
instead of being divided between the empire, on the one 
hand, and the states composing it, on the other. When 
the latter became members of the empire, they gave up 
their sovereignty, receiving in exchange, as Bismarck ex- 
pressed it, a share in the joint sovereignty of the empire.^ 
While the better opinion is in favor of the theory that 
sovereignty is a unit and therefore incapable of division, 
there is no reason why the expression of the powers of 
sovereignty, its emanations or manifestations, cannot be 
divided and expressed through various mouthpieces and 

' "History of Federal Government," p. 4, see also p. 15. 

^Esmein, "Droit constitutionnel," 4th ed., p. 7; Duguit, "Droit constitution- 
nel," pp. 134, 141. See also Oppenheim, "International Law," vol. I, p. 134. 

^ For discussions of this question see especially Brie, " Der Bundesstaat," sec. 10; 
Bornhak, "Preussische Staatsrecht," vol. I, pp. 71 ff. ; and Merriam, "History of 
Sovereignty," pp. 204 ff. 

* Among the German advocates of the unity theory may be mentioned Gareis, 
Haenel, Laband, Zorn, Georg Meyer, and Martitz. 

' Howard, "The German Empire," pp. 20, 116. Seydel, like Calhoun in Amer- 
ica, maintained that the individual states of the empire are sovereign, that they 
are real states, and that the empire itself is no state. See his "Kommentar zur' 
Verfassungsurkunde," 2d ed., pp. 6-ii. 



262 SOVEREIGNTY 

The Mani- Carried out through a variety of organs. Thus, said Rou:>- 
of^Soyer-^ seau, power may be divided, though will never can be. It is 
eignty a unit and indivisible. Those who maintain the divisibility 
divided theory, as Rousseau points out, really confuse sovereignty 
with its emanations.^ The same Idea was expressed by 
Calhoun, who said with evident truth: "There is no dififi- 
culty In understanding how powers appertaining to sover- 
eignty may be divided and the exercise of one portion be 
delegated to one set of agents and another portion to 
another, or how sovereignty may be vested in one man, 
in a few, or In many. But how sovereignty itself, the 
supreme power, can be divided ... it Is Impossible to 
conceive." " 
Sover- Applying this principle to the so-called federal state, we 

stages ^° shall lind that the sovereign will expresses itself on certain 
having the subjccts through the medium of a central government, and 

Federal •' , , * , . , , , ^ . , . ,. 

System of ou ccrtam Other subjects through the organs of the indi- 
men7°" vldual political units composing the federation. But 
there is no partition of sovereignty, no division of the 
supreme will. There is a division by the sovereign Itself 
of governmental powers and a distribution of them among 
two sets of organs, but no division of the will Itself. To say 
that the component members of a federal union are partly 
sovereign, or sovereign within their particular spheres, 

' "Le Contrat social," bk. II, ch. 2. 

^ Works, vol. I, p. 416. Compare also Willoughby (" The American Constitu- 
tional System, " pp. 4-5) : " That there cannot be in the same being tvfo wills, each 
supreme, is obvious. But though the sovereign will of the state may not be divided, 
it may find expression through several legislative mouthpieces, and the execution of 
the commands may be delegated to a variety of governmental organs." Compare 
also George Ticknor Curtis, who says ("History of the Constitution," vol. II, pp. 
377-379) • "It is manifest that there cannot be two supreme powers in the same 
community if both are to operate on the same objects. But there is nothing in the 
nature of political sovereignty to prevent its powers from being distributed among 
different agents for different purposes." For similar views see Hurd, "Theory 
of our National Existence," p. 121; Gareis, " Allgemeine Staatsrecht," p. 31; and 
Funck-Brentano ("La Politique," p. 68), who maintain that though sovereignty 
cannot be divided, \\.% functions may be and its authority may be delegated, the forms 
of delegation being as infinite as the passions and human wills. 



THE INDIVISIBILITY OF SOVEREIGNTY. 263 

is an abuse of the term "sovereignty." Juristically it is 
just as logical to say that a municipal corporation or a 
religious society is sovereign within the sphere assigned 
to it by the law. 

"There is no middle ground," says an able writer, 
speaking of the nature of sovereignty in the American 
federal system; "sovereignty is indivisible, and either 
the central power is sovereign and the individual mem- 
bers not, or vice versa. They are not states, for that 
would be imperia in imperio, but they are administrative 
districts with larger powers of autonomy than are given 
others — an autonomy which amounts to practical local 
self-government in matters not of general concern." ^ 
Legally this is an absolutely correct statement of the 
status of the so-called states of the American federal 
republic. That power and that power alone is sovereign 
in a federal union which can in the last analysis determine 
the competence of the central authority and that of the 
component states, and which can redistribute the powers of 
government between them in such a way as to enlarge or 
curtail the sphere of either. That power is not in the cen- 
tral government nor in the states; it is over and above 
both, and wherever it is, there is the sovereign. 

The task of "running the sovereign to cover," especially 
in the "composite" states of to-day, is not always easy, and 
when discovered it is not always recognized. It is ex- 
tremely difficult to place one's finger on the exact spot 
where it reposes. The constitutional lawyer and the lay- 
man do not always travel the same path in the search for 
it, and they do not always find it in the same place. But 
it is always present somewhere in the state; and if in the 
search we push our inquiry until we find that authority 
which has the power to say the last word in all matters of 
authority, we shall find ourselves in the presence of the 
sovereign. 

' Willoughby, " The Nature of the State," p. 244. 



264 SOVEREIGNTY 

V. INTERNAL VERSUS EXTERNAL SOVEREIGNTY^ 

The fact that the state has an international personahty 
and exerts a will in relation to other states has given rise 
to the common distinction between external and internal 
sovereignty, between sovereignty as a concept of inter- 
national law and sovereignty as a concept of constitutional 
law. Those who recognize the distinction conceive internal 
sovereignty to mean the supremacy of the state within its 
own territory as over against the wills of all persons or 
associations of persons therein ; while external sovereignty 
is conceived to be the supremacy of the state as against 
all foreign wills, whether of persons or states. The one 
has reference to the exclusive power of the state viewed 
from within, the other to the immunity of the state from 
outside control. Many writers, especially those on inter- 
national law, maintain that the two sovereignties are 
separate and distinct, and that the state may possess one 
without the other; that is, the state may be internally 
sovereign without being sovereign in its external relations. 
The logical conclusion is that states may be sovereign as 
to certain things and non-sovereign as to others; in other 
words, that sovereignty is divisible and admits of differ- 
ent degrees of perfection — a conclusion which we have 
already shown to be untenable.^ Georg Meyer, a noted 
German scholar, distinguishes between constitutional sov- 
ereignty and international sovereignty; the former being the 
power of "unrestrained political action" as regards internal 

' On the distinction between external and internal sovereignty, see Wheaton, 
"International Law," ch. 2 ; Oppenheim, "International Law," vol. I, part I, ch. i ; 
Hall, "International Law," ch. 2, sec. 10; Duguit, "Droit constitutionnel," 
sec. 28; Merignhac, " Traits de Droit international public," vol. I, pp. 162 ff. ; Pradier- 
Fodere, "Traitede Droit international public," vol. I, p. 160; Despagnet, "Droit 
international public," 3d ed., p. 82; Merriam, "History of Sovereignty," p. 216. 

' The German jurists Laband, Jellinek, Rehm, and the French writer Moreau 
all agree in holding that sovereignty is not divisible into external and internal 
"branches," to use Wheaton's term, and that a state cannot possess the one without 
the other. See Duguit, "Droit constitutionnel," p. 114. 



IS SOVEREIGNTY AN ESSENTIAL ELEMENT? 265 

affairs, the latter being independence of foreign control/ 
But if a state possesses the power of unrestrained po- The Dis- 
litical activity in internal affairs, it cannot at the same unsound" 
time be dependent upon an outside will. That would, as 
Jellinek remarks, be a contradictio in adjecto.^ The dis- 
tinction between international or external sovereignty on 
the one hand, and internal or constitutional sovereignty 
on the other, is, according to strict logic, unsound. The 
former is but the outward reflex action of the highest 
power in the state, the manifestation of its supremacy in a 
particular direction. In other words, external and internal 
sovereignty are simply different aspects or manifestations 
of one and the same thing. ^ One may be considered the 
positive side of sovereignty, the other its negative side. 
Or, to state it in a different form, one is the supremacy of 
the state viewed from the exterior, the other the same su- 
premacy looked at from within. 

VI. IS SOVEREIGNTY AN ESSENTIAL ELEMENT OF THE STATE? 

Many able writers, particularly among the Germans, The Right 
maintain that while sovereignty is a common attribute the^^eaT'^' 
of the state it is not an essential constituent; in other Test of 
words, that states and sovereign states are not necessarily Existence 
identical concepts. Sovereignty, they assert, may or may 
not be present in the state; it may constitute the basis of 
recognition in international law, but is in itself an insuffi- 
cient test of statehood.^ They distinguish between sover- 
eignty {Staatshoheit or Hoheitsrecht) , the power of the state 
to determine the limits of its own competence, and state 

* "Lehrbuch des deutschen Staatsrechts," sec. 6. 

* "Staatenverbindungen," p. 23. 

' Compare Oppenheim, "International Law," vol. I, p. 171. See also Esmein 
("Droit constitutionnel," p. i), who says sovereignty has two "faces," internal 
sovereignty, or the right to command all citizens in the territory of the state ; and 
external sovereignty, or the right of representing the nation and entering into 
relations with other nations. 

* Cf. Howard, " The German Empire," p. 20, and the authorities there cited. 



266 SOVEREIGNTY 

power (Herrschaft) , or the right to rule, which is possessed 
by every state, while only certain states possess the former. 
Communities, like the component members of federal 
unions, for example, which were once independent and 
which have never surrendered their essential marks of 
existence, but have only delegated certain powers of gov- 
ernment to a central authority, are cited as examples of 
states without sovereignty. In becoming parts of a new 
union they have ceased to be sovereign but have not 
ceased to be states.^ Thus Jellinek maintains that a 
community which exercises political power according to its 
own right, that is, power which is original rather than de- 
rived and which can lay down binding legal norms, is in a 
juristic sense a state, whether it possesses full sovereignty 
or not.^ They are, he says, public law corporations, have 
their own constitutions, their own independent spheres 
of action, and retain their magisterial rights (Hoheits- 
rechten) /' Other authorities who hold the view that sov- 
ereignty is not a vital principle in the constitution of the 
state are Laband,^ Rehm,^ Georg Meyer,® von Mohl, Le 
Fur und Posener,^ Hermann Schulze,^ Brie,® Anschiitz, 
Bluntschli,^" and the French writers Michoud " and Lapra- 
delle.*^ According to these writers the distinguishing char- 

* Cf. Merriam, "History of Sovereignty," p. 200. 

* "Staatenverbindungen," p. 40. ' Ibid., p. 49. 

^ "Staatsrecht cles deutschen Reiches," vol. I, pp. 107-108. For a searching 
criticism of Laband's conception, see Burgess's review of his theory in the " PoHtical 
Science Quarterly," vol. Ill, pp. 123 et seq. 

* "Allgemeine Staatslehre," in Marquardsen's "Handbuch," Einleitungsband, 
sec. 16. 

'"Lehrbuch des deutschen Staatsrechts," 6th ed., p. 7. "Sovereignty," says 
Meyer, " is no essential constituent of the state. There are sovereign and non- 
sovereign states." 

' " Bundesstaat und Staatenbund," p. 2. * " Deutsches Staatsrecht," sec. 16. 

^ " Theorie der Staatenverbindungen," p. 9. " The members of a federal union," 
observes Brie, "are really states but not sovereign states," p. 112. 

'" " Volkerrecht," sec. 79. 

" "Theorie de la Personnalite morale," p. 239. 

'^ "La Question fmlandaise," "Revue de Droit public," 1901. 



IS SOVEREIGNTY AN ESSENTIAL ELEMENT? 267 

acteristic of the state is, as has been intimated, not sov- 
ereignty, not the original power of the state to deter- 
mine its own competence, but the power to command 
and compel obedience. A community which rules and 
governs in its own right, says Jellinek, is a state, and 
non-sovereign as well as sovereign communities may 
do that/ There were many communities during the 
Middle Ages, he says, which were tributary or vassal, like 
the great feudal seignories of France, yet were recognized 
as states. 

But if the possession of political power (Herrschafi) is a Sover- 
sound test of statehood, it is difficult to see why provinces an eTsch- 
possessing large autonomy, or self-governing colonies like tifi Con- 
Australia, Canada, or New Zealand, do not equally possess the state 
the quality of states.^ Whether sovereignty is an essen- 
tial characteristic of the state depends mainly upon our 
notion of the thing itself and our conception of the nature 
of the state. If we accept the theory of a divided sover- 
eignty, or the distinction between perfect and imperfect 
states, we need have no trouble in accepting the doctrine 
that a communit}^ in which sovereignty is partly lacking 
may nevertheless be considered as a state. But if we ad- 
here to the test laid down elsewhere in this work, no non- 
sovereign community, however great its local autonomy, 
is entitled to be treated as a state. We agree with Zorn 
and Burgess that sovereignty is not only an essential ele- 
ment, but the first and highest conceivable mark of the 

' " Staatenverbindungcn," pp. 30, 37. For a criticism of Jellinek's views on this 
point, see Merignhac, "Traite de Droit international public," vol. I, pp. 178-183. 

^ Cf. Duguit, op. cit., pp. 137, 140; also Gierke in " Schmollers Jahrbuch " 
for 1883, p. 1137; Merignhac, op. cit., vol. I, pp. 173 et scq.; and Burgess, 
" Political Science Quarterly," vol. Ill, p. 123. Jellinek, Laband, and Rehm argue 
that the members of federal states differ from self-governing colonies in that their 
power is original and underived, that they have the power of self-organization, in- 
herent autonomy, etc., while the powers of colonies are merely delegated and hence the 
latter cannot be considered as states. This distinction is good so far as the members 
of some federal states are concerned, but how about those like the Canadian province 
which have granted rather than reserved rights ? 



268 SOVEREIGNTY 

state ;^ and with Willoughby that it is the one characteris- 
tic which serves to distinguish the state in toto genere from 
all other human associations.^ There are many communi- 
ties, among them the constituent members of some federal 
unions and the great English self-governing colonies, 
which have an autonomy amounting almost to independ- 
ence in the management of their local affairs, yet they are 
not free to determine their own competence or the limits 
of their own autonomy. It would seem, therefore, more 
accurate to treat such communities not as states, but as 
parts of states, possessing some, but not all, of the marks 
of real states. 

VII. Austin's theory of sovereignty 

A conception of sovereignty which has been the subject of 
wide discussion and which has exerted an important influ- 
ence upon the legal thought of the last half century is that 
enunciated by the analytical school of jurists of which 
John Austin was the most conspicuous representative. 
Austin's views were based largely on the teachings of 
Hobbes and Bentham, and were first made public in his 
"Lectures on Jurisprudence," published in 1832. His 
theory was conditioned mainly upon his view of the na- 
ture of law, which he defined in a general way as a "com- 
mand given by superior to an inferior." ^ "If a determi- 
nate human superior,' he declared, "not in a habit of 
obedience to a like superior receive habitual obedience from 
the bulk of a given society, that determinate superior is 
sovereign in that society, and the society (including the 
superior) is a society poHtical and independent." "Fur- 

* " Deutsches Staatsrecht," vol. I, sec. 54 ; Burgess, " Political Science Quarterly," 
vol. VII, p. 128. 

*"The American Constitutional System," pp. 4-5. Cf. Borel, "Etude sur la 
Souverainete," p. 103, who holds that members of federal states are not themselves 
states in the juridical sense because sovereignty is an essential characteristic of 
statehood. See also Le Fur, " Etat federal," pp. 680 et seq. 

' Lectures on Jurisprudence," lect. VI. 



AUSTIN'S THEORY OF SOVEREIGNTY 269 

thermore," he continued, "every positive law, or every 
law simply and strictly so-called, is set, directly or circui- 
tously, by a sovereign person or body to a member or 
members of the independent political society wherein that 
person or body is sovereign or supreme." 

The test of sovereignty, then, according to Austin, is ha- 
bitual obedience to a superior who owes no obedience to a 
like superior — not obedience by all the inhabitants, but 
by the "bulk" of the members of the community. This 
superior cannot be the general will, as Rousseau taught, nor 
the people in the mass, nor the electorate, nor some abstrac- 
tion like public opinion, moral sentiment, the common rea- 
son, the will of God, and the like; but it must be some 
"determinate" person or authority which is itself subject 
to no legal restraints. 

Austin's theory that sovereignty must reside in a determi- Criticism 
nate body has found many critics among the historical ju- Theory'" ^ 
rists like Maine, Clark, Sidgwick, and others. In the first 
place, the theory is criticised on the ground that it is incon- 
sistent with the present-day idea of popular sovereignty 
— is in fact the complete antithesis of Rousseau's doctrine 
that sovereignty is the general will, a doctrine which 
lies at the basis of the modern democratic state. Again, it 
ignores the power of public opinion, and takes no account 
of what we have described as political sovereignty. Thus, 
says Sir Henry Maine, it is a historic fact that sovereignty 
has repeatedly been for a time in the hands of a number of 
persons not determinate, and, he adds, "it is asserted by 
some writers that this is true of the abiding place of sover- 
eignty in the republic of the United States." * Furthermore, 
Austin's notion of law as a command emanating from a 

* Compare Dewey, "Austin's Theory of Sovereignty," "Political Science Quar- 
terly, " vol. IX ; Maine, " Early History of Institutions," lect. XIII. But apparently 
Austin v?as thinking only of legal sovereignty, which must from the nature of the 
case be located in a determinate authority, and not of political sovereignty, which 
may abide in an indeterminate number of persons. 



270 SOVEREIGNTY 

determinate superior — a conception which lies at the basis 
of his theory of sovereignty — has been criticised by the 
historical jurists on the ground that it ignores the great body 
of customary law which has grown up through usage and 
interpretation, and which never had its source in the will 
of a determinate superior; that it errs in treating all 
law as being merely command; and that it exagger- 
ates the single element of force to the neglect of obvious 
historical facts with which Austin could not have been 
unacquainted.^ 

Austin apparently foresaw the objections that would be 
urged against his definition of law, and he sought to antici- 
pate them by one of those legal fictions common among 
lawyers, namely, by extending the scope of his definition to 
include customary law. Custom, he argued, is law only 
when sanctioned by the sovereign, and what the sovereign 
permits he commands; hence, customary law is a legal 
command, and he who permits it to continue as law is the 
sovereign. But, like most legal fictions, this is rather 
unsatisfactory, if indeed it does not prove too much for 
his doctrine.^ 

Another objection sometimes urged against the Austinian 
theory is the absolutism which it attributes to sovereignty. 
Like Hobbes, Austin held that the fountain and source 

^ See on this point Maine, " Early History of Institutions," p. 352 ; Clark, " Practi- 
cal Jurisprudence : a Commentary on Austin," pp. 166 ff. ; Sidgwick, " Elements of 
Politics," Appendix A; Markby, "Elements of Law," p. 24; Lowell, "Essays on 
Government," ch. 5 (chapter on "Sovereignty"); W^ilson, "An Old Master and 
Other Essays," ch. 5; Ritchie, in the "Annals of the American Academy of Political 
and Social Science," vol I, p. 387; T. H. Green, " Political Obligation, " pp. 93-120; 
Lightwood, " Nature of Positive Law," ch. 13; Merriam, " History of Sovereignty," 

pp. 145 ff- 

^ Thus, says Dewey {op. cit., p. 50), if the doctrine be true that what the sovereign 
does not forbid he enjoins, the whole social activity of mankind would have to be 
conceived of as carried on in obedience to the commands of a determinate authority, 
which manifestly would lead to a reductio ad absiirdum. Compare also Ritchie, 
{op. cit., p. 388), who says, "to call a custom a command of parliament because 
permitted, is the same as saying that the refusal of the king of Persia to forbid the 
observance of the Sabbath is the equivalent of commanding the observance of it." 



AUSTIN'S THEORY OF SOVEREIGNTY 271 

of law could not be limited by any higher law, and hence 
sovereignty involved legal despotism. There cannot, he 
said, be a hierarchy of supremacies nor a coordination of 
creators nor a series of sovereigns ascending to infinity. 
He frankly admitted that there was no escape from the 
conclusion that sovereignty is legally unrestrainable, and 
hence the sovereign is, legally speaking, a despot, however 
benevolent he may be in fact. But he pointed out, what 
is obviously true, that it does not follow that because 
the sovereign is unlimited in its powers the government 
through which it expresses itself is necessarily subject to 
no restriction. 

Of the merits of Austin's theory we venture the opinion 
that his chief error consisted in unduly emphasizing the 
purely legal aspects of sovereignty, and in overlooking the 
forces and influences which lie back of the formal law — 
a very natural mistake for a lawyer to make. It may also 
be said that his theory was probably inapplicable to all 
states of society, such, for example, as Maine described in 
his work on the " Early History of Institutions."^ But as a 
conception of the strict legal nature of sovereignty, Austin's 
theory is, on the whole, clear and logical, and much of the 
criticism directed against it has been founded on misap- 
prehension and misconception.^ 

The nature of sovereignty has not always been understood, 
nor is it now. It has often been the subject of much loose 
thinking by statesmen and of dogmatism by political writers.'^ 
Powerful constitutional controversies concerning its location 
have shaken more than one state in the past and have some- 
times even led to civil commotion. While there is now a 

' See especially ch. 13. 

^ For a discussion and criticism of Austin's views see Jethro Brown, "The 
Austinian Theory of Law," especially chs. 3 and 5. 

^Compare on this point Jellinek, "Staatenverbindungen," p. 7. "No word," 
says Lieber, "has claimed more consideration within the last century and a half, 
yet its meaning has all the time been changing and has hardly ever been used with 
any definiteness." 



272 SOVEREIGNTY 

substantial consensus of opinion among the best political 
writers concerning its fundamental characteristics, there 
are still differences of opinion regarding its place of abode 
in some of the complex states of the present day/ 

' For a discussion of the theories concerning the location of sovereignty see 
Bliss, "On Sovereignty," ch. 6. It would be difficult, for example, to say where 
sovereignty resides in the United States, whether in the people of the country at 
large or whether in the people of three fourths of the states, or either. The con- 
stitution, as a matter of fact, may be amended and ratified according to two differ- 
ent processes. So far, all amendments have been proposed by Congress and ratified 
by the state legislatures, so that neither the people of the United States, nor the 
people of the states, have, in fact, participated in the exercise of the sovereign 
power. 



CHAPTER IX 

THEORIES OF STATE FUNCTIONS 

Suggested Readings: Adams, "Relation of the State to Indus- 
trial Action " ; Amos,, "Science of Politics," ch. lo; Beudant, "Le 
Droit individuel et I'Etat," chs. 1,4; Bluntschli, " Allgemeine Staats- 
lehre," bk. V, chs. 1-4; also his "Allgemeines Staatsrecht," bk. VI, 
ch. i; BoRNHAK, "Allegemeine Staatslehre," pt. I, sec. Ill; Burgess, 
"Political Science and Constitutional Law," vol. I, bk. II, ch. 4; 
Cunningham, "Economics and Politics," ch. 4; Donisthorpe, "Indi- 
vidualism," chs. 3,9, 10; Dupont-White, L'Individuel et I'Etat"; 
Flint, " Socialism," chs. 1-3; Graham, "Socialism," chs. 5-9; Green, 
"Political Obligations," pp. 142-243; Hadley, "Economics," ch. i; 
Held, "System des Verfassungsrechts," ch. 10; Holtzendorff, 
"Principien der Politik," bk. Ill, chs. 7-1 1; Humboldt, "Sphere and 
Duties of the State" (trans, by Coulthard) ; Huxley, "Administrative 
Nihilism," in his " Critiques and Addresses," ch. i ; Jellinek, " Recht 
des modernen Staates," bk. II, ch. 8; Jourdan, "Role de I'Etat dans 
rOrdre economique, " Introduction; Kirkup, "History of Socialism," 
Introduction and chs. 9-1 1; Lacy, "Liberty and Law," chs. 4, 5, 6, 
8; Laveleye, "Le Gouvernement dans la Democratie," vol. I, bk. I, 
chs. 7, 8, 10, II, 12; Laboulaye, "The Modern State," ch. i; Leroy- 
Beaulieu, "L'Etat moderne et ses Limites," chs. i, 2, 5; Lieber, 
"Political Ethics," vol. I, bk. II, ch. 5; Lilly, "First Principles of 
Politics," chs. 3, 4; Mackay, "A Plea for Liberty," chs. i, 2, 4; 
McKechnie, "The State and the Individual," chs. 3, 4, 8, 12, 13; 
Michel, 'L'lde'e de I'Etat," Introduction, also bk. Ill; Mill, "Politi- 
cal Economy," vol. II, bk. V, chs. i, 8, 9; also his "Essay on Liberty"; 
Montague, "Limits of Individual Liberty," ch. 6; Pollock, "History 
of the Science of Politics," ch. 4; Posado, "Tratado de Derecho 
Politico," bk. V, chs. 1-3; also bk. VI; Rae, "Contemporary 
Socialism," ch. 11; Ritchie, "Principles of State Interference," chs. 
2,3; BruceSmith," Liberty and Liberalism," chs. 9 and 10; Spencer, 
essays on the "Duty of the State," "Limits of State Duty," "Poor 
Laws," "Education," "Sanitary Supervision," "Currency," "The 
Coming Slavery," "Sins of Legislators," and "The Great Political 
Superstition," collected and published under the title "Social Statics 
and Man versus the State"; Villey, "Role de I'Etat dans I'Ordre 
economique," Introduction; Woolsey, "Pohtical Science," vol. I, pt. 
II, chs. 4 and 5; Zacharia, " Vierzig Bticher vom Staate," bk. V. 
POL. SCI. — i8 273 



274 



THEORIES OF STATE FUNCTIONS 



The View 
that the 
State is a 
Necessary 
Evil 



Function 
only to 
Restrain 



I. THE INDIVIDUALISTIC OR LAISSEZ-FAIRE THEORY 

The doctrines concerning the sphere of the state, if we 
exclude those of the anarchists, who profess to beHeve 
that the state should be done away with entirely, may be 
roughly grouped into three classes, which we may desig- 
nate as the individualistic theory, the socialistic theory, 
and the compromise theory. 

The individualist, unlike the anarchist, considers the state 
to be a necessity, though he is pretty nearly at one with the 
anarchist in regarding it as essentially an evil, and hence its 
sphere of activity should be restricted to the narrowest 
possible limits, consistent with the maintenance of peace, or- 
der, and security. The individualistic doctrine regards all 
restraint qua restraint as an evil and every extension of the 
power of the state as so much taken from the domain of 
individual liberty. It holds that the state is a necessity 
simply because of the inherent egoism and ignorance of man, 
which lead him to disregard the rights of his fellow men 
for his own selfish purposes. A noted Frenchman, Jules 
Simon, expressed the individualistic idea in extreme form 
when he said the state ought to strive to make itself useless 
and prepare for its own demise.^ The same idea was ex- 
pressed by the historian Freeman, in language which has a 
decided anarchistic ring, when he remarked that "the ideal 
form of government is no government at all ; the'existence of 
government in any shape is a sign of man's imperfection." ^ 
The state exists, argue the individualists, merely because 
crime exists, and its principal function, therefore, is to 
restrain, not to direct and promote.^ When the state 



' Quoted by Laveleye in his " Le Gouvernement dans la Democratic," vol. I, p. 24. 

^ Essays, p. 353. 

^ "Imaginez en effel une politique parfaite,^' says Janet, "un gouvernement 
parfait, des lots par/aits, vous supposez par la-meme des hommes parfaits. Mais 
alors la politique ne serait plus autre chose que le gouvernement litre de chaque 
homme par soi-meme; en d'autres terms, elle cesserait d'etre. Et cependant, c'est la 
sa Jin et son ideal. L'objei du gouvernement est de preparer insensiblement les 



THE LAISSEZ-FAIRE THEORY 275 

undertakes to own and operate agencies for transporting 
freight and passengers; when it undertakes to carry parcels 
for private individuals ; send telegrams ; subsidize theaters 
and give concerts; maintain libraries, museums, art gal- 
leries, hospitals, zoological gardens, parks, playgrounds, bath 
and wash houses; erect dwellings for the poor; provide 
schools and colleges for the education of the young; and 
send out scientific expeditions, — it not only undertakes to 
do what is not necessary for the protection of the individ- 
ual, which is the only excuse for the existence of govern- 
ment, but it is encroaching upon the domain of private 
enterprise or otherwise interfering with the liberty of the 
individual. The individualists therefore condemn public 
education; sanitary, vaccination, and quarantine laws; 
laws regulating the conduct of trade and industry; pure 
food laws; and indeed all legislation the effect of which is to 
impose restrictions upon industry or business or to interfere 
with the social habits of individuals. In short, its sole 
function in regard to industry is to leave it alone/ The 
modern state attempts to do entirely too many things, 
say the individualists. '' Ne pas trop gouverner;" "laissez 
/aire, laissez passer," expresses their conception of its 
legitimate duty. It should be nothing more than a police 
organization to enforce contracts, keep the peace, and 
punish crime; and when this is done, its functions are 
exhausted.^ 

hommes a cet etat parfait de societe, ou les lois et le gouvernement lui-meme devien- 
draient inutiles." "Histoire de la Science politique," vol. I, p. c. 

' Donisthorpe, "Individualism," p. 38; Michel, "L'Idee de I'Etat," p. 630. 
"It cannot be too carefully remembered," declares Bruce Smith ("Liberty and 
Liberalism," p. 252), an ardent individualist, 'that almost every clause of an act of 
parliament, if it has force and effect at all, takes away liberty from somebody because 
it must of necessity speak of something which shall or shall not be done where 
before it was optional." 

^ " Individualists, " said the late Professor Huxley, in his essay on " Administrative 
Nihilism,-' "condemn all sanitary legislation, all attempts on the part of the state to 
prevent adulteration, or to regulate injurious trades; all legislative interference with 
anything that bears directly or indirectly on commerce, such as shipping harbors, 



276 



THEORIES OF STATE FUNCTIONS 



Origin and 
Develop- 
ment of 
the Lais- 
sez-faire 
School of 
Thought 



Individualism as a political doctrine had its origin in 
the latter part of the eighteenth century as a reaction 
against the evils of overgovernment in Europe. It was 
one of the leading tenets of the physiocratic school of 
economists that the state ought not to interfere with the 
economic activities of the people by prescribing condi- 
tions under which Industry should be carried on, but should 
confine its functions to the simple protection of the laws of 
nature under which production would best regulate itself 
if left alone/ They accordingly attacked the prevailing 
notions regarding the omnipotence of the state and de- 
manded freedom of trade and industry. This doctrine 
received a powerful stimulus from the publication of 
Adam Smith's "Wealth of Nations" (1776), which was 
largely a plea for the policy of non-interference by the state 
in economic matters. Smith denounced the laws then in 



railways, roads, cab fares, and the carriage of letters ; and all attempts to promote 
the spread of knowledge by the establishment of teaching bodies, examining bodies, 
libraries, or museums ; all endeavors to advance art by the establishment of schools 
of design, or picture galleries, or by spending money upon an architectural public 
building when a brick box would answer the purpose. According to their views, not 
a shilling of public money must be bestowed upon a public park or pleasure ground ; 
not a sixpence upon the relief of starvation, or the care of disease. Those who hold 
these views support them by two lines of argument. They enforce them deductively 
by arguing from an assumed axiom, that the state has no right to do anything but 
protect its subjects from aggression. The state is simply a policeman, and its duty 
is neither more nor less than to prevent robbery and murder and enforce contracts." 

Professor Sidgwick thus states the functions of government according to the indi- 
vidualistic doctrines: i. "To protect the interests of the community generally and 
individual citizens so far as may be necessary from the attacks of foreign states. 

2. To guard individual citizens from physical injury, constraint, insult, or damage to 
reputation, caused by the intentional or culpable careless action of other individuals. 

3. To guard their property from detriment similarly caused ; which involves the 
function of determining doubtful points as to the extent and content of the right 
of property and the modes of legally acquiring it. 4. To prevent deception leading 
to the detriment of person or property. 5. To enforce contracts made by adults in 
full possession of their reasoning faculties, and not obtained by coercion or misrepre- 
sentation nor injurious to other persons. 6. To protect in a special degree persons 
unfit, through age or mental disorder, to take care of their own interests." "Politi* 
cal Economy," p. 420. 

^ Compare Sidgwick, "Political Economy," p. 399. 



THE LAISSEZ-FAIRE THEORY 277 

force restricting the free interchange of the products of 
labor and interfering with the free employment of labor, as 
mischievous and destructive of their own purpose. Later 
the doctrine of natural liberty in economic matters was 
defended by various other English economists, notably 
Cairnes, Ricardo, and Malthus; by French writers like 
Bastiat, De Tocqueville, Dunnoyer, Leon Say, and M. 
Taine; and by the German philosophers Kant, Fichte, 
Wilhelm Humboldt, and the Baron Eotvos. Still more 
recently the individualistic doctrines have found earnest 
advocates in Laboulaye, Michel, and Leroy-Beaulieu in 
France, and in Herbert Spencer, John Stuart Mill, Earl 
Wemyss, the Duke of Argyle, Bruce Smith, Wordsworth 
Donisthorpe, and others in England/ 

One of the earliest and ablest arguments in favor of the wiiheim 
"governmental minimum" was written by a Prussian, ^^^^'.^ 
Wilhelm Humboldt, in 1791, but for political reasons it Argument 
was not published until 1852, after the author's death. 
It was entitled "Ideen zu einem Versuch, die Grenzen der 
Wirksamkeit eines Staates zu bestimmen." ^ Humboldt 
laid down the proposition that the state should "abstain 
from all solicitude for the positive welfare of the citizens 
and ought not to proceed a step farther than is necessary 
for their mutual security and protection against foreign 
enemies." For these purposes only should it impose re- 

' The laissez-faire theories have been vigorously exploited and popularized in 
England by the "Liberty and Property Defense League," an organization formed 
some years ago for the purpose of "resisting overlegislation and for maintaining 
individualism as opposed to socialism." It has printed and distributed thousands of 
pamphlets, leaflets, and some books, dealing with the growing tendency to substitute 
government regulation in the place of individual management and enterprise in all 
branches of industry and attempting to show the paralyzing effect of this kind of legis- 
lation upon the national development. Its membership has numbered many thou- 
sands, including such men as Lord Justice Bramwell, the Earl of Wemyss, Lord 
Penzance, and the Earl of Pembroke. It scrutinizes all projects of legislation and 
endeavors to prevent the enactment of laws contrary to the principles for which the 
league stands. 

* This essay has been translated into English under the title ''Sphere and Duties 
of the State," by Joseph Coulthard (London, 1854). 



278 



THEORIES OF STATE FUNCTIONS 



Spencer's 
Defense 
of the 
Laissez- 
faire 
Theories 



strlctions upon individual liberty/ " The grand point to 
be kept in view by the state," he said, "is the develop- 
ment of the powers of all its single citizens in their perfect 
individuality; it must, therefore, pursue no other object 
than that which they cannot procure for themselves, 
viz. security; and this is the only true and infallible 
means to connect, by a strong and enduring bond, things 
which at first sight appear to be contradictory — the 
aim of the state as a whole and the collective aims of all 
its individual citizens." ^ 

The most elaborate defense of the individualistic view of 
the sphere of the state has been made by Herbert Spencer 
in a series of essays published under the collective title 
"Social Statics and Man versus the State," a work which 
has done more to elucidate and popularize the laissez-faire 
doctrine than any other political treatise. Spencer starts 
out with the assertion that the existence of the state is 
the result of man's inherent perversity and egoism and 
that in reality it is an aggressor rather than a protector. 
"Be it or be it not true," he says, "that man is shapen in 
iniquity and conceived In sin, it is unquestionably true 
that government is begotten of aggression and by ag- 
gression." ^ Being Instituted merely for the purpose of 
curbing his wicked propensities and protecting him from 
the violence and fraud of his fellows, it follows that in 
a morally perfect condition of society government can 
have no raison d'etre. "Have we not shown," he asks, 
"that government Is essentially immoral ? . . . Does It 
not exist because crime exists, and must government 
not cease when crime ceases, for very lack of objects 
on which to perform Its functions ?" He goes on to 

1 Ch. III. 

'Ibid., p. 184. It is interesting to note in view of Humboldt's ideas concerning state 
aid to education that in later life he was minister of public instruction in Prussia and 
was the founder of the University of Berlin, an institution supported and maintained 
by the state. 

* "Social Statics and Man v. the State " (1903), p. 334. 



THE LAISSEZ-FAIRE THEORY 279 

say that "it is a mistake to consider that government 
must last forever, ... It is not essential, but inciden- 
tal. As amongst Bushmen we find a state antece- 
dent to government, so may there be one in which it 
shall have become extinct." The doctrine that the state 
is justified in doing whatever seems to those in authority 
to be "expedient," or whatever tends to produce the 
"greatest happiness," or which will subserve the "general 
good, " Spencer denounces as governmental despotism, 
since there is no standard or test for determining what is 
expedient or what is for the general good except the opin- 
ions of the governors themselves. 

He dwells upon what he calls the militant type of society. The Miu- 
with its excessive regimentation and its army-like organi- *^^^*^^ ^j^^ 
zation; he compares this with the industrial type, con- industrial 
trasts the condition of the individual under the regime society 
of status with his condition under a regime of contract, 
as he calls it, and emphasizes the advantages of volun- 
tary over compulsory cooperation and of negative versus 
positive regulation. The experience of the past, he afiirms, 
proves that the acquisition of happiness does not come 
through state action, but through being left alone. Cut- 
ting away men's opportunities on one side in order to add 
to them on another is nearly always accompanied by loss, 
he says, through the friction of administrative mechan- 
ism. The sphere of government should be "negatively 
regulative," that is, its functions should be to redress 
evils, not to try to make men happier by helping them to 
do what they can do as well or better themselves. "To 
administer justice, to mount guard over men's rights," are 
the only proper functions of the state; and when it does 
more, it defeats its own ends. The duty of the state is to 
formulate in law preestablished rights, not to create them, 
and to enforce them instead of intruding on them like an 
aggressor.^ The individual has but one right, the right 

' Ibid., p. 406. 



28o THEORIES OF STATE FUNCTIONS 

of equal freedom with everybody else, and the state but 
one duty, the duty of protecting that right against vio- 
lence and fraud, 
state Ac- Spencer inveighed against all legislation for the regula- 
con- tion of commerce and trade; against sanitary legislation, 

demned such as quarantine, vaccination, and registration laws; 
against public education; against poor relief by the state; 
and even against state-managed post offices and currency 
issued by the state. Every attempt to mitigate the suf- 
fering of the poor through state intervention, he declared, 
"eventuates in the exacerbation of it." The sums de- 
voted to the support of paupers should go to support la- 
borers in new reproductive works. ^ In regard to education 
by the state, he observes that "taking away a man's prop- 
erty to educate his own or other people's children is not 
needful for the maintenance of his rights and hence is 
wrong." ^ State intervention is legitimate only for the 
protection of violated rights, and the rights of children are 
not violated by neglect of their education. The idea that 
it is the duty of the state to undertake to protect the 
health of the people Spencer combats with equal ardor, 
though he admits that the state may suppress nuisances.^ 
All taxation for sanitary superintendence must, he says, be 
condemned. He goes to the length even of maintaining 
that it is a "violation of the moral law" for the state to 
"interpose between quacks and those who patronize 
them," or to forbid unlicensed persons from prescribing 
for the sick, since it is the inalienable right of the individual 
to "buy medicine and advice from whomsoever he pleases," 
and the unlicensed practitioner should have the same right 
to sell to whomsoever he will. Regarding the right of 
the state to monopolize the issue of money, he maintains 
that it cannot justly forbid the issue of or enforce the ac- 
ceptance of certain notes or coin in return for other things, 
since that would be an infringement of the natural right 

' "Social Statics," p. 132. * Ibid., p. 156. * Ibid., p. 200. 



THE LAISSEZ-FAIRE THEORY 281 

of exchange and a violation of the law of equal freedom.* 
Finally, Spencer condemns the construction of public 
works by the state except such as may be necessary for the 
national defense and rejects its right to a monopoly of 
the postal service, since "it is clear that the restriction 
thus put upon the liberty of trade by forbidding private 
letter-carrying establishments is a breach of state duty." ^ 

Much of Spencer's case against the state is based upon Basis of 
the errors and blunders of particular governments in the f^gu-*''* 
past. The statute books, he laments, are a record of ment 
"unhappy guesses." "Nearly every parliamentary pro- 
ceeding is a tacit confession of impotence, for the great 
majority of legislative measures introduced are designed 
to amend and improve existing laws." In an essay entitled 
"The Sins of Legislators," Spencer reviews much of the 
unwise legislation of the past, dwells upon the evils which 
resulted from it, and concludes that because much of 
this legislation v/as in time repealed or modified it ought 
never to have been enacted. He protests against what 
he calls the worship of the legislature and asserts that as 
the great political superstition of the past was the divine 
right of kings, that of the present is the divine right of par- 
liaments. And the divine right of parliaments means only 
the divine right of the majority, for the minority has no 
right to be respected.^ Some men actually seem to think, 
he remarks, that individuals can be made moral by an act 
of the legislature and that which is economically unsound 
can be made sound and wise by the fiat of the state. 

Some of Spencer's followers, like Donisthorpe and 
Auberon Herbert, go to even greater lengths in their op- 
position to state regulation. They not only oppose edu- 
cation by the state; poor relief; inspection of factories, 
mines, and workshops; the regulation of injurious trades; 
compulsory vaccination laws; quarantine and health regu- 
lations; the requirement of official oaths; Sunday legis- 

' Ibid., pp. 221-226. ' Ibid., p. 231. 'Ibid., p. 381. 



282 



THEORIES OF STATE FUNCTIONS 



lation; laws regulating public amusements; restrictions 
upon the sale of liquor, etc., — but they even deny to the 
state the right to regulate the marriage relation or re- 
strict in any manner individual liberty in social matters 
except in so far as it is absolutely necessary to protect each 
man from the positive aggressions of his fellows/ 



The 

Grounds 
of Justice 



Freedom 
Essential 
to the 
Harmo- 
nious De- 
velopment 
of the In- 
dividual 



II. DEFENSE OF THE LAISSEZ-FAIRE THEORY 

In defense of the individualistic conception of the sphere 
of state activity it is argued, in the first place, that con- 
siderations of justice require that the individual shall be 
let alone by the state in order that he may realize fully 
and completely the ends of his existence. This particular 
line of argument has had the powerful support of such 
scholars as Kant, Fichte, Humboldt, and John Stuart Mill. 
According to their views it is necessary to the harmonious 
development of all the powers of the individual that he 
should be interfered with as little as possible by the state, 
because every restriction upon his freedom of action tends 
to destroy his sense of initiative and self-reliance, weaken 
his responsibility as a free agent, impair his energies, and 
blunt his character. 

"The true end of man, or that which is prescribed by the 
immutable dictates of reason," observed Humboldt, "is 
the highest and most harmonious development of his 
powers to a complete and consistent whole." Over- 
government Humboldt goes on to say, not only dimin- 
ishes freedom, but "superinduces national uniformity and 
a constrained and unnatural manner of action" by its 
tendency to reduce society to a dead level. ^ The same 
line of argument is pursued by Mill, who asserts that 
an excess of government, especially of the meddling and 
inquisitorial sort, "starves the development of some 



' Compare especially Donisthorpe, "Individualism," chs. 6 and 7. 
• "Ideen," etc., chs. i and 2. 



DEFENSE OF THE LAISSEZ-FAIRE THEORY 283 

portion of the bodily or mental faculties, when it de- 
prives one from doing what one is inclined to do or from 
acting according to one's judgment of what is desir- 
able." ^ Free competition develops in the individual the 
highest possibilities, sharpens and strengthens his powers 
of initiative, and increases his sense of self-reliance; while 
overgovernment not only hampers enterprise and inter- 
feres with the natural development of trade, but it strikes 
at the development of character, tends to crush out in- 
dividuality and originality by interfering with the natural 
struggle between individuals, and leads to a general lower- 
ing of the social level. ^ The highest civilization, say the Overgov- 
laissez-faire advocates, has been developed under individ- "eSens 
ualism, a system which has produced more material and individual 
educational progress than could ever have been produced 
under paternalism. Spencer dwells upon the fact that in 
an overgoverned state "everybody is like everybody else." 
Government management and control of industry, he com- 
plains, is "essentially despotic"; it "unavoidably cramps" 
by diminishing liberty of action, "angers," leads to dis- 
content, "galls by its inefficiency, and restrictions," of- 
fends by professing to help those whom it will not allow 
to help themselves and vexes by the swarm of dictatorial 
officials who are forever stepping in between men and their 
pursuits.^ The "evils of officialism" and of "sociahstic 
meddlings," he declares, prevent the healthy and natural 
development of a people, while freedom develops and 

* "Political Economy" (ed. of 1864), vol. II, p. 561; cf. also Kant in his "Prin- 
ciples of Politics " (trans, by Hastie, p. 36). "Individualism," says Michel, in his 
"L'Idee del'Etat" (p. 372), "stands for the emancipation of the man, the complete 
development of all his powers, and the full enjoyment of all his rights as an in- 
dividual." Again he says, "Individualism is alone capable of furnishing a rational 
foundation for the philosophy of right as well as political liberty and the sover- 
eignty of the people." Ibid., p. 630. 

^Compare Bruce-Smith, "Liberty and Liberalism," p. 320; and Argyle, 
"Reign of Law," p. 340. 

' " Social Statics," p. 135. 



284 



THEORIES OF STATE FUNCTIONS 



Individu- 
alism rests 
on Scien- 
tific 
Grounds 



Individ- 
ualism 
rests on 
Sound 
Economic 
Principles 



strengthens individual character and conduces to human 
progress. "A people among whom there is no habit of 
spontaneous action for a collective interest," said Mill 
"who look habitually to their government to command 
and prompt them in matters of joint concern — who 
expect to have everything done for them except what can 
be made an affair of mere habit and routine — have their 
faculties only half developed ; their education is defective 
in one of its most important branches." ^ 

The laissez-faire principle, say its advocates, rests also 
upon sound considerations of a scientific character. It is 
in harmony with the prnciple of evolution, since it is the 
only system that will lead to the survival of the fittest 
in the economic struggle. It assumes that self-interest is 
a universal principle in human nature, that each indi- 
vidual is a better judge of what his own interests are 
than any government can possibly be, and that if left 
alone he will follow them.^ It holds that each individual 
should be allowed to stand alone or fall according to his 
worth, unaided by the props and supports of the state, and 
should be left to work out his own destiny without the 
guidance and tutelage of government. By leaving each 
individual to do unaided that for which he is best fitted, 
the strong and fit classes survive, the unfit elements are 
eliminated, and thus the good of society is promoted.' 

Again, and this is most important in the arguments of 
the laissez-faire theorists, the policy of non-interference 
rests upon sound economic principles. Better economic 

' "Political Economy," vol. II, p. 567. 

^ Ibid., p. 569. Cf. Willoughby, "The Nature of the State," p. 326; and 
Jourdan, "Role de I'fitat dans I'Ordre economique," p. 37. " Laissez faire," 
says Cairnes, " assumes that the interests of human beings are fundamentally the 
same; that that which is best for the interests of one is the best for others; that 
the individual knows his interests in the sense in which they are coincident with 
the interests of others and that in the absence of coercion he will in this sense 
follow them." "Essays on Political Economy," p. 244. 

' Compare Smith, "Liberty and Liberalism," p. 429. 



DEFENSE OF THE LAISSEZ-FAIRE THEORY 285 

results, it is asserted, are obtained for society by leaving 
the conduct of industry as far as possible to private enter- 
prise. Adam Smith, in his "Wealth of Nations," pointed 
out that the system of natural liberty tends toward the 
largest production of wealth. The self-interest of the 
consumer will lead to the demand for the things that are 
most useful to society, while the self-interest of the pro- 
ducer will lead to their production at the least cost/ In 
the economic struggle the individual is animated mainly 
by motives of self-interest. If, therefore, he is allowed to 
use his capital as he pleases, to dispose of his labor to 
the best advantage, to exchange the products of his toil 
freely, and to have" prices fixed by the natural laws of 
supply and demand, better results, not only to himself, 
but to the whole society, will be secured. Unrestricted 
competition stimulates economic production, tends to keep 
wages and prices at a normal level, to prevent usurious 
rates of interest, to secure efficient service and the pro- 
duction of better products than can be obtained by state 
regulation or state management. 

The experience of the past, say the laissez-faire advocates. The Policy 
abundantly establishes the wisdom of the non-interference °^^^c»^l" 

-' sive state 

principle. History is full of examples of attempts to fix Reguia- 
by fiat of the state the prices of food and clothing and of demned 
many other commodities; of laws regulating the wages of by Exp(-ri- 

encc 

labor, prohibiting the wearing of certain kinds of apparel 
and requiring the wearing of certain other kinds, for- 
bidding the exportation of divers commodities, forbid- 
ding certain kinds of machinery in manufacturing pro- 
cesses, restricting the manufacture of certain articles to 
apprentices, prescribing the location of factories; laws 
aiding and encouraging certain industries by means of 
bounties and discouraging certain others by prohibitive 
taxes; laws prohibiting combinations among laboring 
men, fixing the hours of labor, restricting certain trades 

' Compare Sidgwick, "Political Economy," p. 401. 



286 THEORIES OF STATE FUNCTIONS 

exclusively to members of guilds; and even laws pre- 
scribing the cut of one's dress, the number of meals which 
one should eat, the sizes of buttonholes, the length of 
shoes, the making of pins, and the kind of material in which 
the dead should be buried. As late as 1795 magistrates 
in England had the power of fixing the rate of wages ac- 
cording to the price of bread, and it was not until the 
same year that a workman could travel out of his parish 
in search of work. Until 1824 there was in force an act of 
Parliament which forbade manufacturers from locating 
their factories more than ten miles from the royal ex- 
change. Throughout the seventeenth and eighteenth 
centuries the state everywhere exercised a strict and at 
times arbitrary control over many forms of industry. It 
determined who could work and where, the materials with 
which they should work, and the conditions generally under 
which various trades should be carried on. Legions of 
inspectors, measurers, and commissioners saw that the 
conditions prescribed by the state were observed.* Regu- 
lations prescribing the quality and dimensions of manu- 
factured articles were defended on the ground that con- 
sumers were not competent judges of their own- needs. 
Industry was deprived of its natural freedom by laws for- 
bidding skilled labor except by apprentices or by monopo- 
lies which limited the right to engage in certain trades to 
Meddle- those who had exclusive privileges. Most of such legis- 
hiation^^' ^^.tion was mischicvous and destructive of the ends which 
it was intended to secure, and the results which were 
sought for could have been more effectively obtained by 
allowing every man to sell his labor and goods whenever 
and wherever he wished.^ Speaking of those who were 
responsible for this sort of legislation, Buckle observed 
that "they went blundering along in the old track, believ- 

^ Cf. Mill, "Political Economy," vol. II, pp. 532 ff. 

' Cf. Smith, "Liberty and Liberalism," p. 247. For a review of such legislation 
see Hume, "History of England," vol. II, ch. 16, and Smith, op. cit., ch. 6. 



DEFENSE OF THE LAISSEZ-FAIRE THEORY 287 

ing that no commerce could flourish without their interfer- 
ence, hampering that commerce by repeated and harassing 
regulations, and taking for granted that it was the duty 
of every government to benefit the trade of its own people 
by injuring the trade of others." ^ The extent to which 
the governing classes have interfered and the mischief 
which that interference has produced are so remarkable, 
he concludes, as to make thoughtful men wonder how civi- 
lization could have advanced in the face of such repeated 
obstacles. 

Finally, the laissez-faire theorists argue that it Is a The state 
false assumption which attributes omniscience and in- ""Jciell?' 
fallibility to the state and which regards it as better or infai. 
fitted to judge of the needs of the individual, and to pro- 
vide for them than he is himself. There is, they assert, a 
common belief that governments are capable of doing 
anything and everything, and of doing it more efficiently 
than it can be done by private initiative, when, in real- 
ity, experience and reason show the contrary to be the fact. 
The state has no greater powers of invention or of initia- 
tive than the individuals who compose it; it is not a cre- 
ative organ, but an "organ which acts only by means of a 
complicated apparatus, composed of numerous wheels and 
systems of wheels subordinated one to another"; it is an 
organ of criticism, of generalization, and of coordination, 
from which it follows that the state cannot be the first 
agent, the primary cause of progress in human society, but 
only an auxiliary or agent of propagation.^ Every addi- 
tional function, observes Mill, means a new burden imposed 
on a body already overcharged with duties; the result is 
that most things are ill done; and much is not done at all, 
because the government is not able to do it without delays. 
The great majority of things are worse done, he declares, 
when done by government than when done by individuals 

* "History of Civilization," vol. I, p. 313. 

* Leroy-Beaulieu, "The Modern State," bk. I, ch. 5. 



288 THEORIES OF STATE FUNCTIONS 

who are most interested, for the people understand their 
own business better and care for it better than any govern- 
ment can; all the faculties which a government enjoys 
of access to information, all the means which it possesses 
of remunerating and therefore of commanding the best 
available talent in the market, are not an equal for the one 
great disadvantage of an inferior interest.* 

* "Political Economy, " vol. II, p. 565. While the state possesses certain natural 
characteristics which give it a decided advantage as an industrial manager, it has, 
says Rae, in his work on "Contemporary Socialism" (p. 409) "one great natural 
defect, its want of a personal stake in the produce of the business it conducts, its want 
of that keen check on waste and that pushing incentive to exertion which private 
individuals enjoy in the eye and energy of the master. This is the great taproot from 
which all the usual faults of government management spring — its routine, red- 
tape spirit, its sluggishness in noting changes in the public taste, and in introducing 
improved methods of production. Government servants may very generally be men 
of a higher stamp and training than the servants of a private company, but they are 
proverbial, on the one hand, for a certain lofty disdain of the humble but valuable 
virtue of parsimony, and, on the other, for an unprogressive, unenterprising, unin- 
ventive administration of business." 

The objections to the extension of governmental functions beyond what is required 
to satisfy the individualistic standard are well summarized by Lecky, in his "Democ- 
racy and Liberty" (vol. I, p. 276), as follows: "There is, in the first place, what 
may be called the argument of momentum, which Herbert Spencer has elaborated 
with consummate skill and force. It is absolutely certain that, when this system 
is largely adopted, it will not remain within the limits which those who adopted it 
intended. It will advance with an accelerated rapidity; every concession becomes a 
precedent or basis for another step, till the habit is fully formed of looking on all 
occasions for state assistance or restriction, and till a weight of taxation and debt 
has been accumulated from which the first advocates of the movement would have 
shrunk vdth horror. There is the weakening of private enterprise and philanthropy ; 
a lowered sense of individual responsibility ; a diminished love of freedom ; the 
creation of an increasing army of officials,regulating in all its departments the aflfairs 
of life ; the formation of a state of society in which vast multitudes depend for their 
subsistence on the bounty of the state. All this cannot take place without impairing the 
springs of self-reliance, independence, and resolution, without gradually enfeebling 
both the judgment and the character. It produces also a weight of taxation which, 
as the past experience of the world abundantly shows, may easily reach a poijit that 
means national ruin. An undue portion of the means of the individual is forcibly 
taken from him by the state, and much of it is taken from the most industrious and 
saving, for the benefit of those who have been idle or improvident. Capital and in- 
dustry leave a country where they are extravagantly burdened and have ceased to be 
profitable, and even the land itself has been thrown out of cultivation on account of 
the weight of an excessive taxation." 



CRITICISM OF THE LAISSEZ-FAIRE DOCTRINE 289 
III. CRITICISM OF THE LAISSEZ-FAIRE DOCTRINE 

The individualistic theory of state functions has been The state 
criticised upon various grounds. First of all, the assumption an^EvU 
that the state is an evil has not been borne out by the experi- 
ence of mankind under the regime of state organization. 
History, in fact, shows unmistakably that the progress of 
civilization in the past has been promoted to a very large 
degree by wisely directed state action, in short, that the 
state is a positive good. It is true, of course, that at 
times the ends of the state have been perverted to the 
detriment of the public good, but this is no more reason 
for condemning it as an evil than for saying that rail- 
roads are an evil because their operation sometimes re- 
sults in accidents. Spencer's doctrine that the state 
exists only because crime exists and that it would sub- 
serve no purpose in a society of morally perfect beings 
cannot be accepted. The function of the state in the 
complex civilization of to-day is not merely repressive, 
not simply "negatively regulative" ; it has a higher mission 
than that of restraint and punishment. 

So long as men live in groups they will have collective Function 
wants which can only be satisfied through state organiza- o!l^® . 

■' ^ ° ^ ° State not 

tion, and hence there is no reason for believing that the merely 
necessity for the state will ever disappear or that the role Restraint 
which it now plays in the life of human societies will ever 
diminish. On the contrary, all the signs indicate that 
with the increasing complexity of modern civilization the 
need for state action will become stronger and its role more 
extensive. In comparatively recent years a strong reac- Reaction 
tion against the individualistic movement of the earlier ^^e^^oc- 
nineteenth century has everywhere taken place, due trine of 
largely to the conditions resulting from the growth of ySx^ ' 
manufactures, the congestion of the population in the 
cities, the growth of corporate wealth, and changed eco- 
nomic and social conditions generally, all of which have 

POL. SCI. — 19 



290 



THEORIES OF STATE FUNCTIONS 



Mistaken 
Views of 
the Indi- 
vidualists 



thrown the laissez-faire theories into disrepute. "The 
higher the state of civilization," observes Huxley, "the 
more completely do the actions of one member of the social 
body influence all the rest, and the less possible is it for 
any one man to do a wrong without interfering more or 
less with the freedom of all his fellow-citizens. So that 
even upon the narrowest view of the functions of the state 
it must be admitted to have wider powers than the advo- 
cates of the police theory are disposed to admit." * La- 
veleye points out in the same manner that as civilization 
progresses men become more dependent on one another 
and upon society as a whole, and hence the role of the 
state must increase correspondingly in order to satisfy 
their common wants. The individualism of Spencer, as 
Laveleye rightly concludes, is wholly inadmissible under 
the conditions of modern society.^ 

The view of the laissez-faire advocates that state interven- 
tion in the interest of the common good necessarily involves 
a curtailment of individual freedom rests on an assumption 
that is true only within very restricted limits. It is a very 
narrow view indeed which sees in a factory act, a pure 
food law, or a quarantine regulation nothing but an in- 
fringement upon the domain of individual liberty." ^ 
The rights of all are enlarged and secured by wise restric- 

* "Critiques and Addresses," p. 11. Compare also Mill, himself an individualist 
in most matters, who remarks that the restriction of government to the mere protec- 
tion of person and property against force and fraud is a rule which cannot be strictly 
adhered to, for it " excludes some of the most undisputed and recognized functions 
of government." " Political Economy," vol. II, p. 387. 

* " Le Gouvernement dans la Democratie," vol. I, p. 38. See also an article by 
Laveleye in the "Contemporary Review" for April, 1885, in which the individual- 
istic views of Spencer are criticised. 

' Nevertheless, this is the attitude of the laissez-faire theorists. Bruce Smith, 
for example, in his " Liberty and Liberalism," pp. 536-540, argues that a factory act 
is a " distinct instance of interference with property." " Every act of parliament," 
he says, " which in any way curtails the hours of labor or limits the number of 
workmen involves an interference with the freedom of industry and renders less 
valuable the property invested in the business upon which the restrictions are im- 
posed." 



CRITICISM OF THE LAISSEZ-FAIRE DOCTRINE 291 

tions upon the actions of each. It is somewhat Hke pruning 
a fruit tree or trimming a vineyard; it means a loss of some 
fruit, but better fruit is produced so that all are gainers in 
the end. 

The weakest point in the argument of the laissez- The state 
faire advocates is the assumption that the state is neces- Ho^tUe to 
sarily hostile to freedom, that government and liberty Liberty 
represent antithetical ideas, that in proportion as the 
functions of government are multiplied the domain of 
individual liberty is restricted, — in short, that a maximum 
of government means a minimum of freedom. In reality 
wisely organized and directed state action not only en- 
larges the moral, physical, and intellectual capacities of 
individuals, but increases their liberty of action by remov- 
ing obstacles placed in their way by the strong and self- 
seeking, and thus frees them from the necessity of a 
perpetual struggle with those who would take advantage 
of their weakness. In this way the latent abilities of the 
individual are liberated, and his opportunities increased.^ 
It is manifestly wrong to assume that all restraint is an 
evil. In truth the state emancipates and promotes as well 
as restrains. The doctrine that governmental regula- Not all 
tion tends to impair individual character by weakening the ^^an^EvU 
sense of individual initiative, self-reliance, and self-help, 
and by preventing the full and harmonious development 
of the faculties of the individual, has been greatly exag- 
gerated by the laissez-faire advocates. Many of the individ- 
ualistic writers like Mill, Humboldt, and Spencer have, in 
fact, confused individuality with eccentricity and oddity of 
character, qualities which in themselves have nothing of 
value. Character is developed not through freedom alone, 
but quite as much through discipline and restraint. It is 
not true that as the functions of government are extended 
the individual becomes weaker and less self-reliant. The 

'Compare Ritchie, "Principles of State Interference," p. 50; and Funck-Bren- 
iano, "La Politique," p. 34. 



292 



THEORIES OF STATE FUNCTIONS 



Individu- 
alistic 
Exaggera- 
tions 



The In- 
terests of 
the Indi- 
vidual not 
Separate 
from those 
of Society 



most perfectly developed man is the social, not the natural 
man, for it is now generally admitted that the individual 
owes much of his character to the society of which he is a 
part. 

The chief fault of the individualists is that they exagger- 
ate the evils of state regulation and minimize the advan- 
tages; they misunderstand the true nature and limits of 
liberty and have a mistaken idea of the relation of the 
individual to the society of which he is a part. In short, 
they overemphasize the importance of the man at the 
expense of the group; they treat him as if he were para- 
mount and as if he determined the character of society when 
in fact it is society, as has been said, that determines in a 
large degree the character of the individual. Their doc- 
trine rests on the assumption that the individual is largely 
a thing apart from the group of which he is a member, that 
he can be separated from society and treated as though his 
interests were entirely distinct from the interests of his 
fellow men. In reality, however, the individual is more 
than a mere fraction of society; he is the epitome of it; 
he is the "concise formula for the total of actions and 
attributes; . . . out of relation to other things, he is 
literally nothing." ^ " Apart from his surroundings and 
relationships," says Professor Ritchie, " the individual is 
a mere abstraction, a logical ghost, a metaphorical specter, 
a mere negation." ^ The much-admired individual, self- 
centered and self-contained, is, indeed, not very far from 
the strong and solitary wild beast. 

The distrust, not to say hostility, of the laissez-faire 
theorists to government because of the errors or abuses of 
particular governments in the past is childish. It is wholly 
wrong to take the position that because governments have 
made mistakes in the past, or because their agents have 
sometimes abused the powers intrusted to them, they cannot 

* Montague, "Limits of Individual Liberty," p. 57. 
' " Principles of State Interference," p. 11. 



CRITICISM OF THE LAISSEZ-FAIRE DOCTRINE 293 

be trusted in the future; or that because sumptuary laws 
are wrong, factory and sanitary legislation must be wrong 
as well; or that because municipally constructed sewers 
have sometimes produced typhoid fever, cities in the future 
should leave the construction of their sewer systems to pri- 
vate enterprise ; or that because some poor laws have proved 
ineffective, the state should abandon altogether the policy 
of poor relief. The laissez-faire writers never tire of parad- 
ing and exaggerating the mistakes which governments have 
made in the past, and when they are all collected and put 
on exhibition, they constitute what to some is a strong 
indictment against state interference. " The state lives in Mistakes 
a glass house," observes Huxley ; ' ' we see what it tries to do, state%x- 
and all its failures, partial or total, are made the most of. aggerated 
But private enterprise is sheltered under good opaque Laissez- 
bricks and mortar. The public rarely knows what it tries ^^""^ '^'^- 

\ _ -' vocates 

to do and only hears of its failures when they are gross 
and patent to all the world." ^ We may well ask, with Lord 
Pembroke, "What would private enterprise look like if 
its mistakes and failures were collected, and pilloried in a 
similar manner ?" ^ It may readily be admitted, observes 
an able writer, that government is weak and inefficient 
at times and obedient to private interests, but it does not 
follow from such an admission that government ought to 
be made "weaker, corrupter, and more inefficient by prac- 
ticing the illogical doctrine of laissez faire." ^ 

The laissez-faire assumption that each individual knows The indi- 
his own interests better than the state can know them, and '^j'^"^^ ^^^ 

' always 

is therefore the best judge of what is good for him and if the Best 
left to himself will follow those interests, is true only in a hfs Own 
limited sense, and is still less true of classes. This is i^^terests 
readily admitted by some individuahst writers like Mill.^ 
Sidgwick, an unusually fair and judicial writer, discussing 

' "Critiques and Addresses," p. 9. ^ "Liberty and Socialism," pp. 39-40. 

' H. C. Adams, " Relation of the State to Industrial Action." 
* See Mill's "Essay on Liberty." 



294 THEORIES OF STATE FUNCTIONS 

this assumption, well says : "But it seems to me very doubt- 
ful whether this can be granted; since in some important 
respects the tendencies of social development seem to be 
rather in the opposite direction. As the appliances of 
life become more elaborate and complicated through the 
progress of invention, it is only according to the general 
law of division of labor to suppose that an average man's 
ability to judge of the adaptation of means to ends, even 
as regards the satisfaction of his everyday needs, is likely 
to become continually less." * If every man, observes the 
Belgian writer Laveleye, could see clearly and judge 
accurately of his own interests, rights, and duties, then 
pursue them, and do voluntarily what he ought to do and 
nothing that he ought not to do, the necessity for state 
intervention would disappear and we should enjoy the 
reign of liberty." But the very point of the matter is that 
ignorant people cannot take precautions against dangers 
of which they are ignorant. No one lives in a badly 
drained house, drinks water polluted with sewage, or eats 
adulterated food because his interest leads him to do so, 
but generally because he is ignorant of the real character 
of the service or article which he consumes or because he 
cannot help himself.^ Not only is the individual not 
always a competent judge of his own interests as an eco- 
nomic consumer, but in affairs of personal conduct he is 
often not to be trusted, particularly in matters relating to 
his health or safety or moral welfare. The truth is the state 
may be a better judge of a man's intellectual, moral, or 

* " Political Economy," p. 416. Compare also Mill, " Political Economy," vol. II, 
p. 537, who accepts the proposition that the consumer is a competent judge of com- 
modities only with "numerous abatements and exceptions." "The individual," 
says Mill, " is likely to be the best judge (though even this is not universally true) 
of the material objects produced for his use, but there are other things which are 
chiefly useful as tending to raise the character of human beings, of the value of 
which the individual is incompetent to judge." 

' "Le Gouvernement dans la Democratic," p. 24. 

' Cf. Jevons, "The State in its Relation to Labor," p. 43. 



CRITICISM OF THE LAISSEZ-FAIRE DOCTRINE 295 

physical needs than he is himself, and it may rightfully 
protect him from disease and danger against his wishes 
and compel him to educate his children and to live a 
decent life. 

The practice of all modern states is in fact in harmony Practice 
with this view. Few, if any, governments leave their Govern-'" 
citizens to find out for themselves what is healthy food; ^^^^^ 
what physicians, surgeons, and druggists are qualified to the Lais- 
practice ; or what conditions of work are safe or dangerous. DocSlne 
Most governments prescribe conditions under which certain 
dangerous occupations shall be carried on and refuse to 
permit them to be dispensed with even with the consent 
of those who would be endangered. All governments 
prohibit the exercise of certain callings of a quasi-public 
character, except by persons who are able to show by 
examination or otherwise that they possess the requisite 
qualifications to insure the public against incompetent ser- 
vice. Evidence of competency is generally required of 
physicians, apothecaries, engineers, pilots, and even of 
barbers and plumbers. The state goes even further and 
undertakes to protect the individual against the conse- 
quences of his own acts, as where it limits the number of 
hours of labor in mines and factories, and prohibits women 
and children from engaging in certain injurious trades. 

Much of the individualistic distrust of government is objection 
due, as Sir Frederick Pollock has pointed out, to the J^edRlgu- 
failure to distinguish between centralized government lation not 
and local self-government.* A good deal of the objection Reguia- 
which the individualists urge against government would **°" 
be justified if it were centralized government that is com- 
plained of, but the objection is not always well founded, 
when directed against local government, through local 
bodies directly under the eye of the people concerned. 
There is a vast difference, for example, between the 
"nationalization" and the "municipalization" of an in- 

' "History of the Science of Politics," p. 123. 



tion 



296 THEORIES OF STATE FUNCTIONS 

dustry, and there is an equal difference between national 
regulation of individual conduct and control by locally 
elected bodies. Manifestly the same objection cannot be 
urged against a local health regulation that would be appli- 
cable to a national quarantine law. Individualists, like- 
wise, in their wholesale condemnation of government 
usually overlook the distinction between government, 
popularly constituted and controlled, and bureaucratic, 
irresponsible government. It is difficult to see, in many 
cases, why a public utility owned by the government, but 
under immediate control of the people of the locality, 
should be more feared and distrusted than one under the 
management of a private company not amenable to public 
opinion or popular control, 
fnade- Spencer's doctrine of "negative regulation," which would 

Regula- limit the function of the state to redressing rather than 
preventing wrongs, would in many instances defeat the 
ends of the state. Thus, if the only security provided by 
the state against unsanitary plumbing, adulterated foods, 
incompetent practitioners of medicine or apothecaries, 
consisted of the right to sue the negligent plumber, the 
dishonest milk dealer, or the incompetent physician or 
druggist, instead of requiring plumbers to give bonds for 
the efficient discharge of their duties, physicians and 
druggists to pass examinations or otherwise furnish evi- 
dence of capacity, milk to be inspected, etc., the pro- 
tection afforded would in many cases be inadequate, since 
the injury could not be redressed by a mere suit for dam- 
ages. We agree with Sir Frederick Pollock that If it is nega- 
tive and proper regulation to say that a man shall be pun- 
ished for building his house in a city so that it falls into 
the street, it cannot be positive and improper regulation 
to say that he shall so build it that it will not appear to 
competent persons likely to fall into the city street. If it 
is purely negative regulation, and therefore proper, to pun- 
ish a man for communicating an infectious disease by 



CRITICISM OF THE LAISSEZ-FAIRE DOCTRINE 297 

neglect of common precautions, it is not improper to 
require precautions, where the danger is known to exist, 
without waiting for somebody to be actually infected/ 
The individualists show a distorted notion of liberty when 
they contend, as they do in effect, that the individual has 
a right, if he wishes to keep his premises in an unsanitary 
condition, to discharge his sewage where he will, to spread 
disease among his neighbors, to sell unwholesome food 
and drugs to whomsoever will buy. If the state has the Duty of 
right and duty to protect by preventive measures the to^r^g^^Jnt 
individual against violence and fraud, it has the same injury as 
right and duty to protect him against acts the con- redress it 
sequences of which will be to inflict upon him injuries 
which cannot be redressed. There is, as Huxley well says, 
no very great difference between the claim of an individual 
to go about threatening the lives of his neighbors with a 
pistol, and his claim to keep his premises in a condition 
which threatens the health and lives of his fellow men.^ The 
same is true of the right and duty of the state to protect 
the individual against the dangers incident to modern in- 
dustrial processes, such as those resulting from dangerous 
machinery, from bad ventilation, from unsanitary work- 
shops, from fire, and even from unfair contracts of labor. No such 
The freedom of contract is a taking phrase, as has been uni^^j^gj 
aptly remarked, and to many it is a conclusive argument Freedom 

.... . I of Con- 

agamst state intervention in industrial matters; but when tract 
it refers to an agreement between a capitalist and an igno- 
rant laborer who is at the mercy of his employer, there is 
no equality. The doctrine of freedom has no sanctity in 
such cases. There is really no illegitimate interference with 
the freedom of contract when the state undertakes to pre- 
scribe the conditions under which contracts shall be entered 
into between parties one of whom is really not on a free 
and equal footing with the other. 

' "History of the Science of Politics," p. 125. 

^ "Administrative Nihilism," in his "Critiques and Addresses," p. 10. 



298 



THEORIES OF STATE FUNCTIONS 



Laissez- 
faire 
Doctrine 
is Sound 
within 
Certain 
Limits 



Nevertheless, when all is said against the laissez-faire 
doctrine that can be said, it must be admitted that up 
to a certain point the weight of evidence is on its side. 
The proposition that the individual is the best judge of 
what contributes to his own happiness and that he will 
prosper most under a system of liberty and free compe- 
tition is in most cases a sound one and ought in practice, 
as Sidgwick and Cairnes have shown, to be deviated from 
only in special cases where there are strong empirical 
reasons for believing that the general assumption is not 
true. The doctrines of the individualists, while in many 
cases productive of harm, have not been entirely without 
a good effect. They have, as an able economic writer has 
observed, "taught the people not to confound public 
morality with a state church, public security with police 
activity, or public wealth with government property." 
They have "taught men that, as society develops, the in- 
terests of its members became more and more harmoni- 
ous; in other words, that rational egoism and rational 
altruism tend to coincide." ^ The principal fault with 
them has been their disposition to exaggerate the com- 
pleteness of this coincidence in the existing imperfect 
stage of human development, and in assuming that 
freedom will do everything for society, economically and 
morally. 



Socialism 
regards 
the state 
as a 
Positive 
Good 



IV. THE SOCIALISTIC THEORY 

Directly opposed to the laissez-faire theory of state func- 
tions is what, for lack of a more suitable term, we m.ay call 
the socialistic theory, which contends for a maximum 
rather than a minimum of government. The supporters 
of this theory, instead of distrusting the state and looking 
upon it as an evil whose functions should be restricted 
to the narrowest possible limits, regard it as a supreme 
and positive good; and hence its mission should include the 



* Hadley, " Economics," p. 14. 



THE SOCIALISTIC THEORY 299 

promotion of the common economic, moral, and intellec- 
tual interests of the people. "A sociaHst," says Professor 
Ely, "is one who looks to society organized in the state for 
aid in bringing about a more perfect distribution of eco- 
nomic goods and an elevation of humanity; the individu- 
alist regards each man, not as his brother's keeper, but as 
his own, and desires every man to work out his own salva- 
tion, material and spiritual.* It must not be understood, The Dif- 
however, that the advocates of state socialism attach any tlnTs^of 
less importance to individual freedom than do the individ- Exten- 
ualists. On the contrary, they regard it as all important 
and differ from the individualists only in holding that it 
can be better secured through state action than through 
the laissez-faire policy, which permits unrestricted com- 
petition. 

Those who advocate a wide extension of state activ- Extreme 
ity may be grouped into several classes according to °*^^ *^** 
the nature and extent of the role which in their opinion 
the state should play. First, there are the extreme so- 
cialists, v/ho advocate collective ownership and manage- 
ment of all industries, including land and capital, and the 
instruments of production and transportation. They 
would substitute state management of industry in the 
place of private management, and joint ownership of the 
instruments of production in the place of individual 
ownership, thus making of the state a vast compulsory 
cooperative commonwealth in which the means of produc- 
tion, distribution, and exchange are under the control of 
government.^ Under such a system the state would be- 
come the principal owner of the wealth of the country, 

•"Any legislation," says Bruce Smith, "which attempts the equalization of 
social conditions, that is, such as involves interference by the state beyond the limits 
at which that interference is necessary to secure equal liberties or equal oppor- 
tunities, is socialism." " Liberty and Liberalism," p. 618. 

* Cf. J. S. Mill, "Fortnightly Review, " April, 1879; Ely, " Socialism and Social 
Reform," p. 10; Rae, "Contemporary Socialism," pp. 379, 399; Hadley, "Eco- 
nomics," p. 15; Flint, "Socialism," p. 16. 



300 



THEORIES OF STATE FUNCTIONS 



Demands 
of Pure 
Socialism 



and there would be no private property except perhaps 
in things actually used by each individual.* Socialism of 
the present time, says an able writer on the subject, extends 
the state's intervention from those industrial undertak- 
ings it is best fitted to manage well to all undertakings of 
whatever character, and from the establishment of those 
securities for the full use of men's energies to the attempt 
to equalize in some way the results of their use of them. 
It may be less shortly described as aiming at the progres- 
sive nationalization of industries with a view to the pro- 
gressive equalization of incomes.^ 

Some extreme socialists, indeed, would have the state 
guarantee work to everybody, lend them money without 
interest, furnish them with the implements of labor, build 
houses for them, give them farms, strike bargains for them, 
provide pleasures for them, and in fact supply all their 
wants, economic, social, intellectual, or otherwise.' The 
socialists of the United States in their national platform 
demand that the machinery of production shall be owned by 
the people in common; that the national government shall 
obtain possession of the mines, railroads, canals, telegraphs, 



' Socialists, however, refuse to identify socialism with communism or with pa- 
ternalism or state socialism. Communism, they maintain, stands for the holding 
of all things in common, while socialism emphasizes community of industry, pro- 
duction, and distribution only. Moreover, socialism, they say, does not mean a 
mere expansion of state functions such as is implied in the notion of paternalism. 
Socialists do not favor increasing governmental control merely for the sake of 
adding power to the government, but rather because they believe the individual 
would have more freedom than he now has. Their idea of the state is rather that 
of a fraternal cooperative commonwealth than a paternal state. The socialists of 
Germany, for example, were bitter opponents of the state socialism of Bismarck, 
which they asserted did not aim at the social and economic amelioration of the 
people, but rather at the extension of the power of the bureaucracy. In England, 
where democracy has made greater headway than in Germany, the distinction be- 
tween socialism and what is called state socialism is not so sharp. The socialism 
of the English Fabian society, for example, is in reality what is called state 
socialism. 

^ Rae, "Contemporary Socialism," p. 399. 

3 Cf. Adams, " Relation of the State to Industrial Action," p. 475. 



THE SOCIALISTIC THEORY 301 

telephones, and other means of pubHc transportation and 
communication, which shall be operated on the coopera- 
tive plan under the control of the federal government; 
that the municipal governments shall obtain possession 
of the local railways, ferries, waterworks, gas works, elec- 
tric light plants, and all industries requiring municipal 
franchises, to be operated on the cooperative plan under 
municipal control; that inventions shall be free to all; 
that education shall be free and compulsory; that the 
state shall assist poor school children with food, clothing, 
and books; and that employment on the public works 
shall be provided by the state for the unemployed/ 

The principal arguments advanced in favor of the social- Argu- 
istic state arfe the following: Under the present system paToJof 
of economic organization, the laboring man does not Sociai- 
receive the fruits of his toil. A large part goes to re- 
ward capital or to pay for the services of those who 
direct and superv-ise the employment of labor, or to specu- 
lators and middlemen, and too Httle to those who are the 
real producers.^ In short, society under the present system 
is organized in the interests of the rich and leads to grave 
inequalities of wealth and of opportunity. The means Present 
of production are being monopolized by the few who unjusTto 

Toilers 

* For various socialistic programmes, see the appendix to Kirkup's " History of 
Socialism." The Knights of Labor, an organization with ends somewhat socialistic, 
demands the establishment of bureaus of labor statistics ; free public lands for settlers ; 
laws for the protection of the health and safety of those engaged in the mining, manu- 
facturing, and building industries; compulsory arbitration of labor disputes; laws 
for the protection of children in factories ; a tax on incomes; government savings 
banks; government ownership of telegraphs, telephones, and railroads ; a coopera- 
tive industrial system; etc., — in order to "secure the toilers a proper share of the 
wealth they create ; more of the leisure that properly belongs to them ; more social 
advantages ; more of the benefits, privileges, and emoluments of the world, — in a 
word, all those rights and privileges of enjoying, appreciating, defending, and per- 
petuating the blessings of good government." The Socialist Workingmen's Party 
of Germany demands free and universal education by the state, legislation for the 
protection of the health and lives of workingmen, sanitary control of workingmen's 
dwellings, inspection of mines, more eflfectual employers' liability acts, etc. 

^ Graham, "Socialism," p. 185. 



302 THEORIES OF STATE FUNCTIONS 

exploit the masses; if indeed private competition has iiot 
been largely eliminated through the organization of trusts 
and combinations. The state should therefore take con- 
trol of all the land and capital or means of production 
now being used for the exclusive benefit of the owning 
class. Under the individualistic regime industrial compe- 
tition has become so fierce that the industrially weak 
have no chance of success and cannot survive in competi- 
tion with the rich; they are growing relatively poorer and 
becoming more dependent upon the employing class, while 
the rich are growing richer and becoming more independ- 
ent. The theory of socialism, it is argued, is founded on 
principles of justice and right. The land and the mineral 
wealth contained therein should belong equally to all, not 
to a few. They are nature's gift to the human race, and 
ought not to be appropriated by the few any more than 
sunlight, air, or water. The same is true as regards the 
instruments of production.^ 
Socialism Competition under the present system not only leads 
oVthe^'^^'^ to injustice and the crushing out of the small competitor, 
Principles but it iuvolvcs cnormous economic waste and extrava- 
gance in the duplication of services. The system of unre- 
stricted competition leads to lower wages, overproduction, 
cheap goods, and unemployed workers. The only remedy 
for such a condition, say the socialists, is the abolition of 
competition and the substitution of the cooperative prin- 
ciple, under which equality of opportunity and equality 
of reward and economy of production will be secured. 
It will Under the socialistic regime, it is asserted, a higher t^^pe of 
rm^her individual character will also be produced and a larger 
Type of degree of real freedom. Such industrial competition as 
Character wc have to-day tends to beget materialism, unfairness, dis- 
honesty, and a general lowering of the standard of indi- 
vidual character. Man is naturally weak and inclined to 
depravity, and the present system of economic individual- 

^ See Kirkup, "History of Socialism," p. ii. 



THE SOCIALISTIC THEORY 303 

ism serves to accentuate his weakness and dishonesty. 
He needs, therefore, to be guided and aided by the state 
and protected against his own inherent frailties. 

The doctrine of socialism, moreover, is really in har- socialism 
mony with the organic theory of the nature of the state, ^°^^ . 
which teaches that society is an organism, not a mere aggre- Extent is 
gation of individuals, that the good of all is paramount foifowed 
to that of a few, and that in order to secure the good of the i° Practice 
greatest number the welfare of the individual as such must 
be subordinated to that of the many. 

Finally, it is argued by the socialists that the state 
has already abolished competition in certain fields and in- 
troduced in its place the cooperative principle and has 
demonstrated its success as an industrial manager to the 
entire satisfaction of all candid and thoughtful men. Gov- 
ernment management and control of the postal service, 
government coinage, government ownership and operation 
of railroads, telegraphs, mines, and other industries of a 
public nature in various countries have all established the 
advantages of collective m.anagement over private manage- 
ment, and thus fully justified the wisdom of the principle 
of socialism. Then why should the state not go further 
and occupy the entire field? Why should it not organize 
all labor as it has already done a part, and apportion the 
products of industry on the basis of each man's rightful 
share as the principles of justice require? ^ Collective 
ownership and management, it is maintained, is thoroughly 
democratic; indeed, socialism is the "economic comple- 
ment of democracy"; it rests upon both ethical and al- 
truistic principles and is the only system under which 
efficiency and justice in production can be secured and un- 
der which a full and harmonious development of individual 
character can be realized.^ 

^ See Graham, "Socialism," p. ir. 

^ Kirkup, "History of Socialism," pp. 10-12. For a summary of the good sociai- 
ism has already accomplished, see Kirkup, ch. 11. 



304 



THEORIES OF STATE FUNCTIONS 



Argu- 
ments 
against 
Socialism 



False 
Premises 



Against the socialistic theory the chief argument ad- 
vanced is the difficulty, if not the impossibility, of realizing 
in practice the system which it advocates. The ideas of 
the extreme socialists are in many respects fantastic and 
would prove impracticable, both on account of reasons of an 
economic character and for others which are inherent in 
the constitution of human nature itself. There have 
always been some men who believed that the state was 
both omniscient and omnipotent and that it has only to 
issue a decree saying, "Let misery and inequality be abol- 
ished, " and it will be done forthwith. 

The socialistic theory starts from a false premise when it 
maintains that private property in land and the instru- 
ments of production is not only wrong morally but also 
economically. To substitute collective ownership for pri- 
vate ownership, even if it were practicable, would tend to 
destroy one of the most powerful mainsprings of human 
endeavor and the chief incentive to individual effort and 
industry. Take away the right of the individual to ac- 
quire property and to accumulate the product for his own 
use, say the opponents of socialism, and you make an end 
of all progress by destroying the incentive to labor. The 
saying of Sir James F. Stephen that to try to make men 
equal by altering social arrangements is like trying to make 
the cards of equal value by shuffling the pack, is hardly 
less true of all efforts to make men equal in economic 
matters. Socialism, says Laveleye, rests on the principle 
that the able, industrious, and provident should share 
with the stupid, the idle, the improvident, whatever may 
be obtained as the reward of their energy and virtues.^ 
It is a system, says another critic, "which requires the 
state to do work it is unfit to do in order to invest 
the working classes with privileges they have no right to 



''■ " Contemporary Review," April, i{ 
denied by the advocates of socialism. 



p. 551. This, however, is stoutly 



THE SOCIALISTIC THEORY 305 

get." ^ The doctrine that each man should be rewarded 
according to his labor, when labor is understood to mean 
simply work with one's hands without reference to capital 
or skill, cannot be defended upon any rational principle ot 
justice.^ Even if account should be taken of the difference 
in the productive capacity and hence of the value of the 
service of different workers, the practical difficulty in apply- 
ing any such rule of distinction would be insurmountable 
under a system of socialism. On what principle would it 
be possible to distribute the rewards of industry to each 
worker according to his share in producing when he works 
side by side with machines, with unskilled and skilled 
laborers, and with directors and supervisors? Socialism The Pure 
will never be practicable until there is a fundamental change state an" 
in human nature, to some of whose deepest principles it impos- 
runs counter. We agree with Professor Ely that it is a 
" glorious ideal, but it will never become a reality this side 
of the golden gates of Paradise." The state may provide 
for the poor and the infirm, and even furnish employment 
to the idle, but it ought not to take away from the former 
the motive for making voluntary provision for old age or 
from the latter the incentive to search for work.^ 

One error of the socialist is that he entirely overesti- Socialism 
mates the state's capacity and efficiency. He assumes that ^^l^^^i 
every business managed by a joint stock concern can be as Capacity 
well managed by the state and ought therefore be taken state 
over and operated by it in the interest of the public. 
But experience and reason are against such a view. Gov- 
ernment in most cases is better fitted to restrain the evils 
of monopoly and regulate the conduct of a business which 
affects the public interest than it is to manage the busi- 
ness itself. The more numerous and diverse the functions 
of government, the greater the difficulties. The business of 

' Rae, "Contemporary Socialism," p. 379. 

* Cf. Graham, "Socialism," p. xxxiv. 

* Cf. Rae, "Contemporary Socialism," p. 392. 
POL. SCI. — 20 



3o6 



THEORIES OF STATE FUNCTIONS 



It fs Con- 
trary to 
Sound 



a joint stock company is usually limited to one or a few 
activities, while under a socialistic regime the business 
activities of the state would be legion. It goes without 
saying that there are some industries that can be better 
conducted by private management and to overcharge 
the government with the conduct of the whole complex 
volume of industrial activity in a modern society would 
lead to inefficiency, if not to a complete breakdown/ The 
problem of providing all the necessaries of life for the people 
of a populous state, of managing the labor and distributing 
the products, would be a task which no government could 
perform satisfactorily." Under a socialistic regime, more- 
over, nothing would be produced except as it pleased those 
Economic in authority. It would be necessary to persuade the state 

Principles , i • i 

to produce many thmgs that are now produced under 
private competition. Production would no longer be regu- 
lated by the law of supply and demand, but it would de- 
termine demand, contrary to every existing principle of 
poHtical economy.^ Besides, the calculations of the gov- 
ernment would constantly be upset by various circum- 
stances.* Everything would depend on the pleasure of 
the governors. A diminution in the quantity and quality 
of production might be expected to result from the with- 
drawal of the stimulus of private incentive. Government 
managers would be languid and without interest in the 
result, laborers would be without incentive and the state 
timid, from which there would result, says one writer, 

* Speaking of the inefficiency of government management, Rae observes that 
"the languor of the government stroke and the slow mechanism of a state depart- 
ment are unfavorable to an abundant production. The general slackening of indus- 
try and the extinction of those innumerable sources of active initiative which at 
present are so busy pushing out new and fruitful developments are too great a price 
to pay for the suppression of the evils of competition. To effect some economies in 
the use of capital we damage or destroy the forces by which capital is produced and 
really lose the power to save a penny." "Contemporary Socialism," p. 400. 

* Compare Robertson in Mackay's "Plea for Liberty," ch. i. 
' Graham, "Socialism," p. 162. 

* McKechnie, "The State and the Individual," P- 188. 



THE SOCIALISTIC THEORY 307 

"a diminished rate of progress, decreased production of 
wealth, with, finally, in all probability, a diffused poverty, 
which, besides being an evil in itself, is one that threatens 
all the higher human interests." ^ 

Finally, socialism would involve, not an enlargement, but it would 
a restriction of individual freedom, and a deterioration of Freedom^^ 
individual character. This point has been ably empha- instead of 

... More 

sized by Mill, Spencer, and others.^ Under a socialistic Liberty 
regime society would have to be organized and controlled 
to some extent like an army. In the absence of all self- 
interest and incentive individuals would have to be disci- 
plined and driven to the discharge of their duties, and in 
the place of freedom we should, according to some writers, 
have virtual slavery.^ If all industry and commerce 
must be managed by a central authority which has to 
calculate and regulate everything, observes McKechnie, 
it follows that all deviations from the appointed and ex- 
pected routine on which these calls are based must be 
strenuously put down. No travesty of a healthy state, 
McKechnie concludes, is more deplorable than a prac- 
tical socialism in the form of an absolute government direct- 
ing with inquisitorial and irresistible sway every detail of 

^ Graham, "Socialism," p. 166. 

^ See Spencer's essay, "The Coming Slavery," and Mill, "Political Economy," 
vol. II, bk. V, ch. II. 

^ This is the opinion of W. H. Mallock, a well-known English writer on social- 
ism, who says: "Now if we assume that the socialistic state can, by some means or 
other, secure all the ablest men as the official directors of the labor of the citizens 
generally, there is, as I said before, nothing inherently impracticable in the proposal 
to guarantee to each laborer all his necessaries and his comforts in any case, and 
secure his industrial obedience by methods the same as those by which military obedi- 
ence is secured in the case of soldiers. On the contrary, this method is one which 
was practiced in the earliest civilizations known to us, and was in practical operation 
for thousands upon thousands of years. It built the walls of Babylon. It built 
the pyramids of Egypt. It raised the monstrous stones of Baalbec. It was the 
method of slavery. It did not receive its deathblow in the civilized world till this 
country inflicted it within the lifetime of living men. It is this method of securing 
and controlling ordinary labor that, on Sidney Webb's admission, any system which 
is truly socialistic would reintroduce." 



3o8 



THEORIES OF STATE FUNCTIONS 



The Idea 
of Pure 
Socialism 
has never 
been real- 
ized in 
Practice 



Growth 
of State 
Socialism 



On the 

Continent 
of Europe 



human life." ' Such are some of the arguments that have 
been advanced by various writers against the theories of 
socialism as popularly understood. 

The ideas of socialism in the form in which it has been 
described above have never been realized in practice in any 
state. The Amana and Icarian communities in Iowa, the 
Shakers and the Harmony Society of Pennsylvania, and 
various others represent attempts to realize in practice 
communistic principles; but they all resulted in failure 
and left behind only "buried hopes and aspirations." 
These communities, says Rae, led to the same results as in 
England, namely, a slackening of industry and a deteriora- 
tion of the general level of comfort." 

While socialism in its extreme form has never been at- 
tempted by any modern state, all states perform various 
functions that are socialistic in character, some more than 
others; and one of the marked political tendencies of the 
time has been the drift in this direction. 

The movement has been strongest on the continent of 
Europe, particularly in Germany, since the founding of the 
empire. There the state operates and controls many busi- 
nesses that in America are left to private enterprise, and 



* "The State and the Individual," pp. 177, 192-193; compare also the estimate 
of SirErskineMay (" Democracy in Europe," Introduction, p. Ixv), who, speaking of 
the socialistic doctrine, says: "The natural effect of such theories would be to repress 
the energies of mankind; and it is their avowed object to proscribe all the more 
elevated aims and faculties of individuals. . . . The individual man is no more than 
a mechanical part of the whole community; he has no free will, no independence of 
thought or action. Every act of his life is prescribed for him. Individual liberty 
is surrendered to the state; everything that men prize most in life is to be taken out 
of their hands. Their religion, their education, the management of their families, 
their property, their industry, their earnings, are dictated by the ruling powers. 
Such a scheme of government, if practicable, would create a despotism, exceeding 
any known in the history of the world." But obviously we have here a confu- 
sion of socialism and communism, a distinction which socialists are careful to insist 
upon. It is but fair to remark, therefore, that much of the criticism quoted above 
is inapplicable to the theories of socialism, though it might well be directed against 
those of communism. 

" " Contemporary Socialism," p. 402. 



THE SOCIALISTIC THEORY 309 

regulates many of the details of individual conduct that 
elsewhere are left uncontrolled by the state. In various 
countries of Europe the state owns and operates railroads, 
mines, banks, and breweries; monopolizes the manufacture 
of certain commodities like brandy, tobacco, and gunpow- 
der; owns and operates or subsidizes theaters and opera 
houses; aids and encourages literature, science, and art; 
insures people against sickness, accidents, and old age; 
owns and operates wholly or in part the instrumentalities 
of communication and transportation; and through the 
local governments manages many public utilities such as 
waterworks, gas and electric light plants, and street rail- 
ways. 

In England, until recently, state socialism had made little in 
headway, but in recent years a "profound change has come °^*° 
over the spirit of Enghsh politics" and the state is running 
fast in the direction of socialism. Indeed, says Laveleye, 
England is now leading the nations of the Old World in this 
respect. England is changing from the old trust in indi- 
vidualism and liberty to a new trust in state regulation and 
from the French doctrine of laissez-faire to the German 
doctrine of state socialism.^ During the last few years the 
English Parliament has enacted a large volume of social 
legislation, such as factory acts, health legislation, laws 
providing dwellings for the poor, employers' liability acts, 
workingmen's compensation acts, old age pension acts, 
etc., while the local governments have gone farther than 
those of any other country toward the municipalization of 
public service industries such as the water and light sup- 
ply and the means of local transportation. Throughout 
England to-day the cities generally own and operate their 
own gas, electric light, and water systems; in many cases 
they own and manage the street railway utilities; and own 
public washhouses, libraries, music halls, etc. The state 
now operates not only the postal service but also the tele- 

' Compare Rae, " Contemporary Socialism," p. 347. 



3IO THEORIES OF STATE FUNCTIONS 

graph and to a large extent the telephone service, operates 
a parcels post system, conducts postal savings banks, 
and performs many other services that were formerly 
left to private enterprise. Most of the state intervention 
in England, however, has been in the interest of better 
moral and social conditions rather than for the promotion 
of economic interests. Most of it, in short, has been 
guided by ethical rather than by economic considerations. 
In Austra- In some of the English colonies, particularly in Australia 
^^ and New Zealand, where private capital has been lacking, 

the activities of the state have been multiplied to an extent 
not equaled anywhere else in the world. There a large 
part of the tillable land Is owned by the state and rented 
to tenants; the coal mines and forests are likewise under 
state control ; so are the railroad, telegraph, and telephone 
systems; there is also a government parcels post system 
and there are government savings banks.^ The state makes 
loans to farmers at low rates and constructs improved 
dwellings for worklngmen. There Is a system of state 
insurance, not only against death and old age, but against 
loss by fire. The government maintains labor bureaus and 
a system of compulsory arbitration in labor disputes; reg- 
ulates the hours of labor In various occupations and In 
some Instances undertakes to regulate the wages of labor; 
constructs public works by direct labor rather than by con- 
tract, and, through the municipalities, generally owns and 
operates the public service industries. The state, in short, 
approaches more nearly the socialistic Ideal than any other 
in the world. It is avast landlord and employer; it en- 
gages In banking, farming. Insurance, the express business, 
mining, and other industries. As to whether the good 
exceeds the evil, there is a wide difference of opinion.^ 

* There are but five private savings banks in Australia. 

* For a valuable study of the subject, see W. P. Reeves, " State Experiments 
in Australia," vol. 2. The system is defended by Parsons in his "Story of New 
Zealand" and criticised by Fairfield in Mackay's " Plea for Liberty." 



CHAPTER X 
THE TRUE SPHERE OF THE STATE 

I. THE ENDS OR PURPOSES OF THE STATE 

Having examined the principal theories concerning the What is 
function of the state, we come next to inquire what is its of^the^ 
natural and proper sphere. Is it the sphere which the state? 
laissez-faire theorists have marked out or that of the 
socialists, or is it neither? In order to determine what is 
the proper domain of state action it is necessary first of all 
to determine what is the end or'purpose of the state. It is 
also well to remember at this point that the functions of 
government, as Mill has shown, are not a fixed thing; that 
they are much more extensive in an advanced state of 
society than in one which is still in a backward state. The 
fact must also not be overlooked, as the same distinguished 
writer has truthfully remarked, that "the proper limits of 
the functions and agency of government" is "one of the 
most disputed questions both in political science and in 
practical statesmanship." * Any conclusion, therefore, that 
we may reach with regard to the subject, unless it be of the 
most general character, will not be universally accepted. 
Whether the state should do this or that can only be an- 
swered, observes Sir Frederick Pollock, by going back to the 
old question, "What does the state exist for?" ^ Is it an 
end in itself or only a means to an end? 

The ancients generally considered the state to be an end The 
rather than a means to the realization of an end. There concep- 
was hardly any realm within which the individual was con- t>o° 

• "Political Economy," vol. II, p. 385. 

' "History of the Science of Politics," p. 124. 

3" 



312 THE TRUE SPHERE OF THE STATE 

sidered to be free as of right; no part of his life was ac- 
knowledged to be sacred from the intrusion of the state. 
The old Mosaic law regulated almost every concern of his 
daily life, — what he should eat and when, how his food 
should be cooked and served, the kind of clothes he should 
wear, and when and whom he should marry, etc. Nor was 
legislation of this character peculiar to the Hebrews. It 
was common among the Greeks and Romans and, to a less 
extent, among the early Germans. In short, the idea of 
individual interests as distinct from the general interests 
was non-existent.^ The individual was always under the 
eye of the state; his conduct was regulated and his life de- 
termined for him with such minuteness that he was regarded 
as existing for the state rather than the state for him. 
Individual freedom was overlooked or its importance mini- 
mized, while the state was exalted and glorified as if it 
were everything and the individual nothing. Modern 
political thought and practice, however, reject the view 
that the state is an end rather than a means. It considers 
the state to be simply an institution, an agency or instru- 
mentality by means of which the collective ends of society 
may be realized, instead of itself being the end.^ 
View- In considering the ends or purposes of the state we may 

Disdnc-"** distinguish between its ends in general, and the particular 
tions ends of a given state. We may also distinguish between 

the ultimate ends and the primary, immediate or prox- 

' Cf. Laboulaye, p. 107; Esmcin, "Droit constitutionnel," p. 377. 

^ Compare Bluntschli, "Allgemeine Staatslehre," bk. V, ch. i. Some modern 
political writers, however, regard the state as an end in itself. See, e.g., Ritchie, 
("Principles of State Interference," p. 102), who remarks that since the best life 
can be realized only in the state, the state is not a mere means but an end in itself. 
Substantially the same opinion is expressed by Villey in his "Role de I'fitat," pp. 
8-9, and by Hegel in his "Philosophic des Rechts." Willoughby ("Nature of the 
State," p. 317) remarks that whether the state is an end or a means depends on the 
viewpoint. From the purely individualistic viewpoint it is only a means, an instru- 
mentality, or an ex])edient through which the highest possible development of 
humanity is obtained. But if the state is considered as an institution distinct and 
apart from the citizens who compose it, it is, of course, he says, an end in itself. 



THE ENDS OR PURPOSES OF THE STATE 313 

imate ends.* The German writer Holtzendorff, in his Hoitzen- 
"Principien der PoHtik," distinguished between the real conTep- 
ends of the state {die realen Staatszwecke) and the ideal ends tion 
{die idealen Staatszwecke).'^ The real ends of the state, he 
said, are: first, the development of the national power 
{der nationale Machtzweck) ; second, the maintenance of 
individual liberty {der Freiheits- oder Rechtszweck) ; and, 
third, the promotion of the social progress and civili- 
zation of the people {der Gesellschaftliche Culturzweck) . 
In short, national power, individual liberty, and the civili- 
zation of mankind, stated in the order of their importance, 
according to Holtzendorff are the real ends of the state. 
The first mentioned is the primary end; the last, the ulti- 
mate or secondary end. Neither conflicts with the other, 
but there exists harmony of purpose between them; and 
the great mission of the state cannot be fully realized by 
neglecting one at the expense of the other.^ 

Bluntschli followed Holtzendorff in rejecting as too narrow Opinion of 
and fruitless the "justice" theory {Theorie des Rechts- fchu*" 
zweckes), which considers the end of the state to be merely 
the maintenance of justice among men; and the " morality" 
theory {Theorie des Sittlichkeitszweckes) , propounded and 
exploited by Hegel, which regards the mission of the state 
to be the realization of the moral law. Bluntschli, like 
Holtzendorff, attaches great importance to the "general 
welfare" theory {Theorie des Wohlfahrtszweckes), though he 
points out the mischief arising from the lack of an exact 
test for determining what constitutes the general welfare. 
He shows that it has been the cloak for covering many 

• On the distinction between the ideal and the real ends of the state, see Holt- 
zendorff, "Principien der Politik," ch. 7, and Bluntschli, op. cit., bk. V, ch. 2; on 
the distinction between the ends of the state in general and those of a particular 
state, see Willoughby, op. cit., p. 309 ; between the specific and general purposes 
of the state, see Von Mohl, " Encyklopadie der Staatswissenschaften," p. 77; 
between primary, ultimate, and secondary ends, see Burgess," Political Science and 
Constitutional Law," vol. I, p. 85. 

' Chs. 7-8. * Ibid., ch. ii, "Die Harmonie der Staatszweck." 



314 THE TRUE SPHERE OF THE STATE 

political sins and the justification for many arbitrary and 
despotic acts of the state. To say that the primary and 
fundamental purpose of the state is the furthering of the 
common welfare does not bring us very near to the solu- 
tion, since it does not tell us what is the common welfare. 
It is very much like saying that the duty of the citizen is 
to keep to the path of virtue, without telling him what 
virtue is or where the way lies. Bluntschli himself dis- 
tinguishes between the "proper and direct" and the "in- 
direct" ends of the state. The former relate to the state 
itself and 'consist in the development of the national 
strength and capacity and the perfecting of the national 
life; the latter relate to the individual and consist in the 
maintenance of his freedom and security.* These ends, 
Bluntschli maintains, embrace everything that can properly 
be regarded as legitimate aims of the state. To us, however, 
the development of the national pov/er seems rather a means 
than an end, the end being the security, liberty, and wel- 
fare of the people composing the state. 
Views of Von Mohl, another famous German writer on political 

Mohi and scicuce, conccivcd the end of the state to be the promotion 
Burgess of the life purposes of the people {die Forderung der Lebens- 
zwecke des Volkes).^ Burgess advances the view that the 
purposes or ends of the state may be classified as primary, 
secondary, and ultimate. The ultimate end, which he con- 
siders first, is (following Holtzendorff and Bluntschli) the 
perfection of humanity, the civilization of the world, and 
(following Hegel) the establishment on earth of the reign 
of virtue and morality. The secondary end is the perfection 
of the principle of nationality in the state and the develop- 
ment of the national genius and the national life. The 
primary end is the establishment of government and lib- 
erty. To state them in their historical order, they are, 
he says: first, the organization of government and liberty, 

' " Allgemeine Staatslehre," bk. V, ch. 4. 

' " Encyklopadie der Staatswissenschaften," pp. 71, 76. 



THE ENDS OR PURPOSES OF THE STATE 315 

SO as to give the highest possible power to the government 
consistent with the highest possible freedom in the indi- 
vidual; to the end, secondly, that the national genius of 
the different states may be developed and perfected and 
made objective in customs, laws, and institutions, from the 
standpoint furnished; by which, finally, the world's civi- 
lization may be surveyed upon all sides, mapped out, trav- 
ersed, made known and realized/ But here again we have 
what seems to be a confusion of ends with means. It is 
difficult to see, for example, why the establishment of gov- 
ernment should be considered as an end to be realized rather 
than the means through which ends are sought. It is, as 
we have said, the testimony of nearly all writers that gov- 
ernment is merely the agency or instrumentality through 
which the ends of the state are realized, and not one of 
the ends itself. 

Many other attempts have been made by political writ- other 
ers to formulate concisely the doctrine of the ends of the 
state. Locke, for example, stated that the end of govern- 
ment was "the good of mankind" ^ — "the noblest and 
briefest" statement of the purpose of government, says 
Huxley, that was ever formulated.^ But the good of man- 
kind is something which is not absolutely fixed for all men, 
regardless of conditions and circumstances, and there is far 
from being any common agreement concerning its constitu- 
ent elements. Professor Ritchie, in his "Principles of State 
Interference," conceives the end of the state to be simply 
the realization of the best life by the individual.* Edmond 

* "Political Science and Constitutional Law," vol. I, p. 89. 

' "Two Treatises of Government," sec. 229. Elsewhere, however, Locke said 
"the great and chief end of men uniting into commonwealths and putting them- 
selves under government is the preservation of their property." Ibid., ch. 9. 

'"Critiques and Addresses," p. 23. 

*p. 102. Adam Smith, in his "Wealth of Nations" (bk. IV, ch. 9) declared 
that the state had but three great duties : first, that of protecting society from 
the violence or invasion of other independent societies ; second, that of protecting 
as far as possible every member of the society from the injustice or oppression of 
every other member of it, or the duty of establishing an exact administration 



Views 



3l6 THE TRUE SPHERE OF THE STATE 

Villey, a recent French writer, in his book entitled "Le R6Ie 
de I'Etat dans I'Ordre economique," tays "The end of the 
state is first of all the maintenance of the national inde- 
pendence from without and the social order within; then 
the development and perfection of the national life, in a 
word, progress." ^ Laboulaye, a noted French scholar, says 
"the r6le of the state is to assure to the individual his 
entire development — the full enjoyment of his physical, 
religious, intellectual, and moral powers; to remove ob- 
stacles and restraints; and to promote the general progress 
by multiplying the means of education and putting it at 
the door of the most ignorant and the poorest."^ John 
Stuart Mill declared that the "proper end of government 
was to reduce the wretched wastes due to the neutraliza- 
tion of the best efforts and talents of men to the smallest 
possible amount by taking such measures as shall cause 
the energies now spent by mankind in injuring one another 
or in protecting themselves against injury, to be turned 
to the legitimate employment of the human faculties, that 
of compelling the power of nature to be more and more 
subservient to the physical and moral good." ^ 
View of If one more attempt to formulate a general statement 

Author ^^ the function of the state may be permitted, I would 
offer the following: The original, primary, and immediate 
end of the state is the maintenance of peace, order, secur- 
ity, and justice among the individuals who compose it. 
This involves the establishment of a regime of law for the 
definition and protection of individual rights and the crea- 
tion of a domain of individual liberty, free from encroach- 
ment either by individuals, or by associations, or by the 
government itself. No state which fails to secure these 

of justice; and, third, that of erecting and maintaining certain works and certain 
public institutions which it can never be for the interest of any individual or small 
number of individuals to erect and maintain. 

' p. i8. See also pp. xi and 59. 

» "La Parti Liberal," p. 6, quoted by Michel, in "L'ld^e de I'Etat." 

* "Political Economy," vol. II, p. 603. 



THE ENDS OR PURPOSES OF THE STATE 317 

ends can justify its existence. Whatever else it may 
ignore, it cannot neglect these considerations without fail- 
ing in its greatest and most essential purpose. Secondly 
the state must look beyond the needs of the individual as 
such to the larger collective needs of society — the welfare 
of the group. It must care for the common welfare and 
promote the national progress by doing for society the 
things which the common interests require, but which can- 
not be done at all or done efficiently by individuals acting 
singly or through association. This is what HoltzendorfiF 
and Bluntschli must have meant when they said that the 
end of the state was the development of the national ca- 
pacities and the perfection of the national life. This may 
be called the secondary end of the state. The services 
embraced under this head are not absolutely essential 
to the existence of society but they are desirable and are 
in fact performed by all modern states. 

Finally, the promotion of the civilization of mankind at 
large may be considered the ultimate and highest end of the 
state. This is the mission-of-civilization theory (Theorie des 
Culturzweckes des Staates) of the Germans, which has been 
powerfully defended and advocated by Holtzendorff, Stein, 
Wagner, Bluntschli, and others. Thus the state has a triple 
end : first, its mission is the advancement of the good of the 
individual; then it should seek to promote the collective 
interests of individuals in their associated capacity; and, 
finally, it should aim at the furthering of the civilization 
and progress of the world, and thus its ends become univer- 
sal in character. Concerning what I have described as the 
primary and immediate ends of the state, there is no very 
wide divergence of opinion among political writers or states- 
men. But as regards the larger ultimate ends, there is no 
such unanimity of opinion. While all are agreed that it is 
the proper function and duty of the state to create such 
conditions as will enable the individual to realize most 
completely the ends of his existence and attain the greatest 



3i8 



THE TRUE SPHERE OF THE STATE 



happiness and progress, there is the widest variety of 
opinion concerning the amount and kind of state action 
necessary to accomplish this end. 



Essential 
Functions 



Natural 
but Un- 
necessary 
Functions 



II. CLASSIFICATION OF STATE FUNCTIONS 

The functions of the state have been classified by many 
writers as : first, those which are necessary and indispensable; 
and, second, those which are optional; or, simply those 
which are essential and those which are non-essential ; or, 
again, those which are socialistic and those which are not.^ 
They may be classified more exactly as: first, those which 
are necessary; second, those which are natural or normal 
but not necessary; and, third, those which are neither 
natural nor necessary, but which in fact are often per- 
formed by modern states.^ The last are described by 
some writers as "doubtful" functions. What are called 
the essential, normal, or constituent functions are such as 
all governments must perform in order to justify their 
existence. They include the maintenance of internal peace, 
order, and safety, the protection of persons and prop- 
erty, and the preservation of external security. They 
are the original primary functions of the state, and all 
states, however rudimentary and undeveloped, attempt to 
perform them. They embrace the larger part of the ac- 
tivities of the state and have to do principally with the 
conservation of society and only secondarily with social 
progress. 

By natural but unnecessary functions are meant those 
which the state may leave unperformed or unregulated 
without abandoning a primary duty or exposing itself to 
the dangers of anarchy, but which would be neglected or 

' Compare Mill, "Political Economy," vol. II, p. 386 ; and Willoughby, "Nature 
of the State," p. 310. Woodrow Wilson, in his work on the state, classifies them as 
constituent and ministrant functions, sec. 1475. 

* See Villey, " Role de r]£tat dans I'Ordre economique," pp. 59-61 ; also Jourdan, 
"R61edel'£tat,"p. 38. 



CLASSIFICATION OF STATE FUNCTIONS 319 

at least not so well performed by private enterprise. 
Among such functions may be mentioned the operation of 
the postal service ; the construction of dikes, levees, canals, 
public roads, bridges, and irrigation works, and works of 
public utility generally; the maintenance of scientific and 
statistical bureaus; the erection and maintenance of light- 
houses, beacons, and buoys; the construction of harbors, 
wharves, and other instrumentalities of trade and com- 
merce; the care of the poor and helpless; the protection 
of the public health and morals; elementary education; 
the regulation of many trades, businesses, and occupations 
which are affected with a public interest; and the conduct 
of various undertakings which would be unprofitable as 
private ventures but which are required by the common 
interest. 

Among the activities of the state which are neither essen- Functions 
tial nor natural, but which are not a matter of indifference neither^* 
to the public and which are performed by some states as Natural 

,, , . -11 ^°^ Neces- 

well as by private enterprise and at less cost, are a great swy 
variety of services mainly economic and intellectual, 
such as: the conduct of railway traffic; the telegraph and 
telephone service; the manufacture and distribution of 
gas and electricity for lighting purposes; the furnishing 
of water for drinking and other purposes in cities; the 
maintenance of theaters, pawn shops, bath houses, 
and lodging houses; the encouragement of certain indus- 
tries by means of bounties, protective tariffs, and sub- 
ventions; the planting of colonies; the encouragement of 
immigration; the establishment of experiment stations, 
liquor dispensaries, banks, universities of learning, hospi- 
tals, reformatories, art galleries, museums, zoological and 
botanical gardens; the erection of improved dwellings 
for working people ; the making of loans to farmers ; grants 
in aid of railroads; the distribution of seeds for agricul- 
tural purposes; the conduct of the business of insurance; 
the granting of old age pensions ; the maintenance of em- 



320 



THE TRUE SPHERE OF THE STATE 



Neither 
Individu . 
alism nor 
Socialism 
the Mod- 
ern View 



ployment bureaus; and many other activities too numer- 
ous to mention. Under this head also may be included 
a great volume of regulatory or restrictive legislation deal- 
ing with the conduct of certain trades and occupations 
which are affected with a public interest, such as: railway 
traffic and means of communication; mining; manufac- 
turing; the relations between employer and employees; 
the conduct of dangerous, offensive, or obnoxious trades; 
the censorship of the press; vaccination, quarantine, and 
sanitary legislation; laws regarding the erection of build- 
ings in cities; laws regulating banking, barbering, baking, 
plumbing, pawnbroking, slaughtering, and many other 
trades or businesses.^ 

The first group of activities described above represent, 
according to the individualistic theories, all the activities 
that the state ought to undertake. Anything more is 
superfluous and involves an infringement upon the rights 
and liberties of the individual and cannot therefore be 
justified. 

III. OBSERVATIONS AND CONCLUSIONS 

Regarding the merits of the individualistic and social- 
istic theories of state functions, but one conclusion is pos- 
sible — neither represents the modern view of the sphere 
and duty of the state. As Huxley aptly remarks, in- 
dividualism and socialism are out of court so far as the 
establishment of their claims is concerned. The state is 
neither a gendarme nor an entrepreneur of public felicity; 
neither a mere police contrivance for securing order nor 
an "epicurean engine for the manufacture of general 
comfort." ^ The question of what are the functions of 
government, observes Huxley, is met by the answer 

' This restrictive legislation is classified as "unnatural, " though under the com- 
plex conditions of modern times it may well be questioned whether it is not more 
natural than unnatural. 

* Compare Villey, " R61e de I'fitat," p. 14; and Montague, " Limits of Individual 
Liberty," p. 168. 



OBSERVATIONS AND CONCLUSIONS 321 

to the question "What ought we men in our corporate 
capacity to do, not only in. the way of restraining that 
free individuahty which is inconsistent with the existence 
of society, but in encouraging that free individuality 
which is essential to the evolution of the social organiza- 
tion? " ^ Manifestly, however, it is impossible to draw the 
boundary line between legitimate and illegitimate state 
interference as we would draw a boundary line on a map, 
because it is a line which must change with the altered 
conditions and needs of society.^ No hard and fast rule. No Fixed 
no fixed principle governing the division, can be laid down ; tween Le- 
no a priori solution of the question can be found. In the g^imate 

. ... and Ille- 

highly complex society of to-day it is difficult to see how gitimate 
any limit can be set to the extent to which under some AcUon 
circumstances the action of government may be carried. 
The question of where to draw the line between those things 
with which the state ought and ought not to interfere is 
one which must be left to be decided separately for each 
individual case.^ Dogmatists have frequently undertaken, 
on the basis of theoretical discussions of the nature of lib- 
erty, to lay down what things the state ought to do and what 
things it ought not to do — that is, how wide should be 
the province of government and how wide that of liberty; 
but all such attempts to solve the problem are as futile as 
the effort to discover the nature of light by discussions 
concerning the nature of darkness. If any general rule may 
be formulated, it must be deduced from a consideration of 
the question whether the purpose of state intervention in a 

* "Administrative Nihilism," in "Critiques and Addresses," p. 23. 

* Compare Leon Say, "Municipal and State Socialism," p. 15. It is impossible, 
says Leroy-Beaulieu (" The Modern State "), to determine a priori the sphere of the 
state and that of the individual, because in life they run together and overlap 
each other. 

' " It follows," says Cunningham ("Politics and Economics," p. 136), "that we 
cannot lay down a definite line restricting the functions of the state and making all 
else as of merely private and individual concern. The influence of the state perme- 
ates all our relations even those of the personal kind." 
POL. SCI. — 21 



322 THE TRUE SPHERE OF TME STATE 

given case is for the common good, whether the proposed 
action is Hkely to be effective, and, if so, whether it can be 
done without doing more harm than good. If a proposed 
act of intervention fulfills these conditions, no valid objec- 
tion can be raised to it because it violates some abstract 
principle of individual liberty or some doctrine of natural 
rights. There are a multitude of cases, as Mill has well said, 
in which governments with general approbation assume 
powers and execute functions for which no reason can be 
assigned except the simple one that they conduce to the 
general convenience; and he might have added that no 
further reason ought to be required. It is manifest, as he 
points out, that the admitted functions of government 
embrace a much wider field than can easily be included 
within the ring fence of any restricted definition, and it is 
hardly possible to find any ground of justification com- 
mon to them all except the comprehensive one of general 
expediency.^ 

In spite of our disagreement with the laissez-faire theo- 
rists on so many points, we agree with Mill when he says 
that, "Whatever theory we adopt respecting the founda- 
tion of the social union, and under whatever political insti- 
tutions we live, there is a circle around every human being 
which no government, be it that of one, of a few, or of 
many, ought to be permitted to overstep; there is a part 
of the life of every person who has come to years of dis- 
cretion, within which the individuality of that person ought 
to reign uncontrolled either by any other individual or 
by the public collectively." ^ Mill's theory that this circle 
should include all that part which concerns only the life 
of the individual and which does not afTect the interests of 
others, or which affects them only through the influence of 
moral example, is undoubtedly a safe proposition so far as 
the purely repressive sphere of the state is concerned; but 

' "Political Economy," vol. II, pp. 391, 392. 
* Ibid., p. 568; see also his essay on Liberty. 



OBSERVATIONS AND CONCLUSIONS 323 

it does not take account of that larger liberty which com3S 
from wisely directed state aid and guidance in the interests 
of social efficiency. Moreover, the impossibility of draw- 
ing any definite lines of separation between the "individual" 
and "social" spheres necessarily renders all such proposi- 
tions of little practical value. 

Upon one point, most men are now agreed ; namely, that Police 
the state has a higher mission than the mere police duty of the Sole 
maintaining peace, order, and security among individuals, Mission 
and that it ought to do more for its citizens than merely state 
prevent them from robbing or murdering one another. 
Nothing, as Huxley observes, "can be less justifiable than 
the dogmatic assertion that state interference beyond the 
limits of home and foreign protection must under all cir- 
cumstances do harm," ^ The state does not do all that it can 
or ought to do when it merely protects the individual from 
violence and fraud and leaves him alone to struggle against 
ruinous conditions which the state alone is capable of re- 
moving. In the beginning of human societies, as Leroy- 
Beaulieu has pointed out, the principal function of the state 
is the maintenance of defense against outside aggression 
and the preservation of domestic order within; but in 
proportion as society emancipates itself and increases in 
population and complexity, as it passes from the savage 
to the barbarous and from the barbarous to the civilized 
stage, a wider duty than that simply of a policeman is 
laid upon it, namely, that of contributing to the perfection 
of the national life, to the development of the nation's 
wealth and well-being, its morality, and its intelligence.^ 

• "Administrative Nihilism," in his "Critiques and Addresses," p. 10. "The 
business of the state," said Thomas Hill Green, "is not merely the business of a 
policeman, of arresting wrong-doers, or of ruthlessly enforcing contracts, but of pro- 
viding for men an equal chance, as far as possible, of realizing what is best in their 
intellectual and moral natures." 

* "The Modern State," ch. 5. "We are often told," says Cunningham, in his 
"Politics and Economics" (p. 140), "that the business of the state is to protect 
person and property, and those who announce this view think they have found a 



324 THE TRUE SPHERE OF THE STATE 

It is legitimate intervention for the state to go in social 
reform as far as it goes in judicial administration, namely, 
to secure for every man as effectively as possible those 
essentials of rational humane living which are really every 
man's right, because without them he would be maimed, 
mutilated, deformed, and incapable of living a normal life. 
The same reason, says a well-known writer, which justified 
the state at first in protecting person and property against 
violation, justified it yesterday in abolishing slavery, justifies 
it to-day in abolishing ignorance, and will justify it to- 
morrow in abolishing other degrading conditions of life.^ 
The state It is an equally legitimate duty, we believe, for the state 
encourage ^^ cucouragc Certain of those higher activities of life, like 
Literature, scieucc, literature, and art, which contribute to the civiliza- 

Art, anl . - . , , i i i • i 

Science tion of a nation, when they cannot be had without such 
aid or encouragement. A nation which does not produce 
and does not care for such things can have, as Lecky has 
truly remarked, only an inferior and imperfect civilization.^ 
State expenditures for the support and encouragement of 
art add to the dignity of a nation and to the education 
of its people ; and most states in fact appropriate money for 
maintaining picture galleries, museums, and art schools. 
We agree with Edmund Burke that the state "is not a 

formula which defines the range of state action pretty closely, . . . but it is idle to 
contend that the prime function of a state is to defend person and property from 
physical agents; the state is expected to intervene to protect life and property from 
human agents and to control human conduct, but not always or generally to pre- 
vent and relieve misery which has accrued from physical conditions unless these 
physical conditions are more or less under human control." 

' Cf. Rae, " Contemporary Socialism," pp. 396-397. Compare a recent state- 
ment of Joseph Chamberlain that "it belongs to the authority and duty of the 
state, that is to say of the whole people acting through their chosen representatives, 
to utilize for this purpose all local experience and all local organization to protect 
the weak and to provide for the poor; to redress the inequalities of our social condi- 
tion and of the struggle for existence, and to raise the average enjoyment of the 
majority of the people." Speech of April 25, 1888, quoted by Bruce Smith in his 
"Liberty and Liberalism," p. 62. 

"'Democracy and Liberty," vol. I, p. 275. Cf. also Pollock, "History of the 
Science of Politics," p. 125. 



OBSERVATIONS AND CONCLUSIONS 325 

partnership in things subservient only to the gross animal 
existence of a temporary and perishable nature," but "a 
partnership in all science, a partnership in all art, a part- 
nership in every virtue and in all perfection." Besides 
administering justice and protecting life and property, it is 
the plain duty of the state to see to it that the social and 
economic conditions under which the individual is compelled 
to live are such that he can develop his latent abilities, make 
the most of the faculties with which he is endowed by nature, 
and thus realize fully the ends of his existence. In short, the The state 
state should be an instrument of economic and social prog- an°instru- 
ress. It should be the representative of social perpetuity, ^^^^ o* 
says Leroy-Beaulieu, and should see to it that the general Economic 
conditions of rational existence do not deteriorate. This is ^^°&^^^^ 
the least that it can do, and it ought to do something toward 
the amelioration of those conditions.^ It ought, declares Du- 
pont-White, to take the lead in promoting progress because 
it is more interested than the individual, has higher moral 
standards, and is able to accomplish larger things for the pub- 
lic good than can be accomplished under private enterprise.^ 
The eminent Belgian writer Laveleye takes the same 
view of the mission of the state when he declares that it is 
something more than a mere organ of protection, or a 
guarantor of peace and order. Its mission, he says, is 
to establish the reign of justice, which would not only 
maintain the sanctity of contracts but would aim at the 
realization of a certain ideal and would modify custom and 
convention in order to attain this particular ideal. To 
establish the reign of law and of justice necessitates an 
active and varied intervention by the state in the social 
and economic arrangements of the people, where many 
iniquities, the heritage of the past, still survive.^ 

* "The Modern State," p. 120. 

^"L'lndividu et I'lfitat," especially chs. 5 and 7. Compare also Michel, 
"L'Idfe de rfitat," pp. 572 ff. 

'"Le Gouvernement dans la Democratic," vol. I, p. 19. 



326 



THE TRUE SPHERE OF THE STATE 



Regula- 
tion 

of Private 
Monopoly 



Presump- 
tion in 
general 
against 
State In- 
terference 



It is the duty of the state to enforce contracts, but it may 
also be its duty to prescribe the conditions under which 
contracts in certain cases shall be valid and entitled to the 
protection of the state, especially when one of the contract- 
ing parties is really not free. The state ought to regulate 
or supervise the conduct of industries which are natural 
monopolies; but it may also be its duty to take the business 
out of the hands of private individuals and operate it itself 
as a means of protecting society from inefficient service and 
ruinous prices. The state ought to preserve for society the 
obvious advantages of industrial competition; and if free 
competition becomes impossible through the policy of 
laissez-faire the state ought to intervene and protect society 
against the evils of private monopoly.^ And experience 
has abundantly shown that the policy of laissez-faire will 
not secure industrial freedom nor insure equality of eco- 
nomic opportunity in the highly complex societies of the 
present day. 

Free competition under modern conditions is not always 
a beneficent social or economic principle. When it forces 
the level of trade down to that which characterizes the 
worst men in it, when it leads to inequality of opportunity 
instead of equality, when it tends to actual monopoly and 
the destruction of healthful competition, and when it results 
in poor economic service, it is no longer a good but an evil. 
The state has the undoubted power as well as the duty to 
determine the character of competitive action so as to ren- 
der it possible for the best men instead of the worst to set 
the fashion and enable society to adjust its productive 
processes to the best possible form of organization. 

■ Nevertheless, the presumption may in general be resolved 
against state interference, whether it be in the form of pro- 
hibition, regulation, or government ownership. There is a 
general agreement that freedom should be the rule and in- 
terference the exception ; and that those who advocate state 

* Cf. Graham, " Socialism," p. xliii. 



OBSERVATIONS AND CONCLUSIONS 327 

interference should have thrown upon them the burden of 
proving the necessity for the proposed innovation, or, as Mill 
says, the "onus of making out a case." ^ Huxley's saying 
that an excess of abstention offers much less peril than an 
excess of intrusion is probably a safe principle to follow. 
It is admitted by nearly all writers that the state should 
not ordinarily undertake to do for society what individuals 
themselves can do as well, or better, or what when done by 
them is productive of better results for all concerned. The 
advantages which result from leaving the individual free 
from restriction in economic matters so long as the rights 
and interests of others are not impaired by leaving him alone, 
are manifest. The liberty of every member of the state as 
a man, said Kant, is the first principle in the constitution of 
a rational commonwealth. Most acts of state intervention 
necessarily involve a certain restriction of liberty upon some 
class, and are justifiable only when they secure the para- 
mount or more urgent rights of others and perhaps of a 
more numerous class. They are certainly unjust if they 
hurt the one class without benefiting the other. 

As has been said, the policy of non-interference should be Freedom 
the leading principle, and interference the exception; in all Jnter^en- 
ordinary cases individuals should be left to shape their con- tion the 
duct according to their own judgment and discretion; and 
no interference should ever be made on any special or 
doubtful grounds, but only when it can be clearly made 
out that it will be productive of public advantage.^ 

' "Political Economy," vol. II, pp. 561, 569; Bruce Smith, "Liberty and Liber- 
alism," p. 448. "Laissez-faire, as a practical rule," says Cairnes ("Political Econ- 
omy," p. 251), "is incomparably the safer guide and ought not to be departed from 
so long as there remains any doubt as to the wisdom of the proposed departure." 

^ Cf . McCuUoch, "Principles of Political Economy," p. 309; and Francis A. 
Walker in the Publications of the American Economic Association, vol. II, pp. 321, 
322. After arguing that the burden of proof should be on the extensionists and the 
presumption against state action. General Walker concludes that whether the state 
should interfere should not depend upon any abstract considerations but upon the 
merits of each individual case ; that in general the state should not do for the 
individual what he can do as well or even nearly as well for himself. 



Exceptioo 



328 THE TRUE SPHERE OF THE STATE 

In the present state of economic and social development 
of the world, however, the policy of laissez-faire is impos- 
sible, much more so than it was in the days of Adam Smith 
and the other English individualists of his time. Profound 
economic, social, and political changes have conspired to 
create a powerful reaction against the individualism of three 
quarters of a century ago/ The modern attitude toward 
the function of the state is very different from what it used 
to be. Everywhere at the present time, instead of a spirit 
of hostility to the extension of the functions of the state, we 
find an increasing clamor for more government. 

Since the middle of the nineteenth century there has been 
a remarkable tendency among civilized states to push their 
lines farther into domains heretofore left to individual 
freedom. It should be remembered, however, that the so- 
called state Interference of the present century differs largely 
from that of the preceding centuries in being legislative 
rather than administrative in its nature. As Professor Seeley 
observes, the nineteenth century state may well be called 
the "legislation state." ^ During the last century the prov- 
ince of executive government to which we still retain our 
traditional hostility has been greatly narrowed. But the 
revised statutes of every modern state, already abnormally 
large, continue to grow in bulk with each passing year. 
Whether life under a future edition will, as Herbert Spencer 
maintains, be a burden and the status of the individual 
that of a slave, is a question which need not worry us. We 
agree with Jevons that, notwithstanding the multiplicity of 
statutes under which the modern individual must live, he is 
an infinitely freer and nobler creature than the wildest sav- 
age who knows no restraints but those of nature, yet who is 
always under the physical despotism of want.' Liberty, 

' See Michel, "L'Idee de I'fitat," bk. V, ch. 2, on the "Dissolution of Individual- 
ism," where the reaction against individualism and the progress of state socialism 
are fully discussed. 

* "Introduction to Political Science," p. 146. 

' "The State in Relation to Labor," p. 14- 



OBSERVATIONS AND CONCLUSIONS 329 

like everything else, is good or bad according to the use 
which is made of it. It has often been misunderstood, 
worshiped as a "splendid robed goddess" and treated as 
the only and all-sufficing end of the state. To some it 
has been a priceless boon, to others a curse. But, on the 
whole, it may be doubted whether mankind has suffered 
more in the past from an excess of government than from 
an excess of liberty. Liberty is not, as Benjamin Constant 
maintained, the end of all human associations,* but is merely 
a means for the realization of the fullness of individual 
life. To treat it as an end in itself is to misconceive the 
whole problem. It is, therefore, beneficial only in so far 
as it helps man to attain that other freedom which is an end 
in itself, the end of all social organization.^ 

* "Principes de Politique," p. 145 (ed. 1861). 

^ Montague," Limits of Individual Liberty," p. 182. For a more detailed con- 
sideration of this subject, see an article by the writer entitled " Government and 
Liberty," in the "Yale Review," February, 1907. 



CHAPTER XI 

CITIZENSHIP AND NATIONALITY 

Suggested Readings: Cockburn on "Nationality," especially 
chs. 1-2; Hall, "International Law," pt. II, ch. 5; Howard, "The 
German Empire," ch. 8; Meili, "International Commercial and Civil 
Law," Trans, by Kuhn, sees. 41-44; Moore, "Digest of International 
Law," vol. Ill, sees. 372-487; also his "American Diplomacy," ch. 8; 
Morse, "Citizenship by Birth and Naturalization," sees. 1-28, 131- 
206; Oppenheim, " International Law," vol. II, pt. II, ch. 3; Report 
of the United States Commission on the Subject of Citizenship, Ex- 
patriation, and Protection Abroad, House Document No. 326, 59th 
Congress, 2d Session; Munroe Smith, article on "Nationality" in 
Lalor's " Encyclopedia of PoUtical Science "; Van Dyne, " Citizenship 
of the United States," chs. i and 2; Webster, "Law of Citizenship," 
pp. 1-58; Westlake, "Private International Law," ch. 15; Whar- 
ton, " Conflict of Laws," vol. I, chs. 1-2; Wheaton, "International 
Law," Appendix No. i; Wise, "Treatise on American Citizenship," 
chs. I, 2, 4. 

I. TERMINOLOGY AND DISTINCTIONS 

What is a The people who constitute the state may be divided into 
* "*° two general classes, namely, citizens and aliens. The 
former class may be again divided into those who possess 
full civil and political rights and those who do not. Aris- 
totle's definition of a citizen as one who has a share in the 
government of the state and is entitled to enjoy its honors,^ 
does not therefore accord with modern theory or practice, 
which hardly anywhere identifies the rights of citizenship 
with political privilege. According to Vattel, "citizens are 

^ "Politics," bk. Ill, ch. i. Cf. also Burlamaqui, who defined a citizen as one 
" who shares in the privilege of the state and who is properly one of its members 
either by birth or in some other manner, all others being simply inhabitants or 
cormorant sojourners." Quoted by Morse in his "Citizenship," p. 40. 

330 



TERMINOLOGY AND DISTINCTIONS 331 

the members of the civil society, bound to this society by 
certain duties subject to its authority, and equal partici- 
pators in its advantages." ^ "Citizens," said the Supreme 
Court of the United States in a noted case, "are mem- 
bers of the poHtical community to which they belong. 
They are the people who compose the state and who in 
their associated capacity have established or subjected 
themselves to the dominion of a government for the pro- 
motion of their general welfare and for the protection of 
their individual as well as their collective rights." ^ 

These definitions, however, as well as most of those Distinc- 
found in the books, represent the popular, rather than tween*' 
the strictly legal, conception of citizenship. In the United "Citizens" 
States, as has been said, "citizen" and "elector" are by "Electors" 
no means convertible terms. In all of the states there 
are citizens who are not electors, and in some there are 
electors who are not citizens. The possession of the 
electoral privilege is not essential to citizenship and there is 
no necessary connection between them. ^ A frequent source 
of confusion and misconception would be removed if the 
term "citizen" were restricted to those who enjoy full civil 
and political rights and a different term employed to de- 
scribe all others.^ Both the French and German languages 
contain suitable terms by which this distinction may be 
expressed. Thus in France those who enjoy full civil and 
political privileges are described by the term citoyen, while 

' "Droit des Gens," bk. I, ch. 19. 

^ U.S. V. Cruikshank, 92 U.S. 542. For other definitions, see Lawrence's 
Wheaton, p. 892; the "English and American Encyclopedia of Law," art. "Citizen- 
ship"; and Wise, "Treatise on American Citizenship," pp. 2-4. "Nothing," said 
John C. Calhoun, "is more difficult than the definition or description of so complex 
an idea as a citizen, and hence all arguments resting on one definition in such cases 
almost necessarily lead to uncertainty and doubt. But though we may not be able 
to say with precision what a citizen is, we may say with the utmost certainty what 
he is not. He is not an alien." Quoted by Wise, op. cit., p. 5. 

* Cf. Mr. Justice Miller in Lang v. Randall, 4 Dill. p. 425. 

* This is essentially the same distinction that the French formerly made between 
active and passive citizens. See, e.g., the French Constitution of 1791, tit. Ill, ch, i. 



332 CITIZENSHIP AND NATIONALITY 

all Frenchmen who owe allegiance and are entitled to pro- 
tection regardless of their civil or political status are desig- 
nated as nationaux} In like manner the terms Staats- 
The Term hiiTger and Staatsangehorige are employed in Germany.^ In 
jec""" the United States the word "subject" has been suggested 
as a suitable term which might be employed to describe the 
unenfranchised class, but it is open to several objections. 
In the first place, it is a part of the modern theory of 
sovereignty that all persons within the jurisdiction of the 
state, regardless of their civil or political status, are, legally 
speaking, subjects, and hence it would be erroneous to 
restrict the application of the term to a portion only of the 
population. In the second place, the fact that the term 
''subject" has been associated historically with the theories 
of feudalism and absolutism, and that it has been and still 
is employed to describe the relation between a hereditary 
monarch and those over whom he rules, has caused the 
term to be looked upon with disfavor in states having the 
popular form of government, as descriptive of a status 
which is inconsistent with republican institutions.^ As 
descriptive of a strict legal status, however, the term 
"subject" is as applicable in republics as in monarchies, 
and but for its historical associations no valid objection 
could be urged against it. The employment of this term 
to describe the status of the inhabitants of the insular 
possessions of the United States certainly ought not to 

' For the distinction between "citizens" and "nationals," see Morse, "Citizen- 
ship," p. 124; Fcelix, "Droit international prive," bk. I, p. 54; Cordogan, "La 
Nationalite," p. 6; and the French Code Civil, bk. 1, title I, sec. VII. 

* Howard, " The German Empire," p. 134; Holtzendorflf, "Encyklopadie der 
Rechtswissenschaft," vol. II, p. 527. 

^ Compare the opinion of the United States Supreme Court in the case of Minor 
V. Happersett, 21 Wall. 162, where, in distinguishing between the terms "citizen," 
"inhabitant," and "subject," the court said: " 'citizen' is now more commonly em- 
ployed, however, and as it has been considered better suited to the description of one 
living under a republican government, it was adopted by nearly all the states upon 
their separation from Great Britain and was afterwards adopted in the Articles of 
Confederation and in the constitution of the United States." 



THE ACQUISITION OF CITIZENSHIP ^^^ 

be objectionable.^ It also suitably describes the members 
of Indian tribes;^ and formerly it might have appropriately 
been employed to describe the slave class and to a less 
extent the class of free negroes.^ 

II. PRINCIPLES GOVERNING THE ACQUISITION OF CITIZENSHIP 

The two general sources of citizenship are birth or The "jus 
descent, and formal grant or conferment by the state The n"?^nd 
acquisition of citizenship by birth is determined by one of "JusSoii" 
two principles or by a combination of both. The oldest cipies 
of the two is commonly known as the jus sanguinis, accord- 
ing to which the nationality of the child follows that of the 
parents or one of them. The other is that of the jus soli 
or jus loci, according to which nationality is determined by 
the place of birth, irrespective of the citizenship of the 
parents.^ The former principle was the one generally 
observed by the ancients in determining nationality and 
allegiance and was incorporated into the Roman law. It 
also became a part of the law of the early Germans after the 
downfall of Rome. With the rise of feudalism, however, 
emphasizing as it did the doctrine of personal allegiance 
of subject to sovereign, followed by the growth of the idea 
of territorial sovereignty, the place of birth rather than 
blood or kinship came to be regarded as the decisive factor 

* The attorney-general of the United States in his argument in the insular cases 
maintained with ability that the inhabitants of the insular possessions were subjects 
rather than citizens. But owing to the fact that the term is "foreign to our legal 
system, and alien to our trend of political thought," the word "national" has, he 
said, been suggested as one which "fits the case more accurately and bears with it 
no unpleasant inference of inferiority or servitude to an individual." F. R. Coudert, 
Jr., " Columbia Law Review, " January, 1902. See also Moore, " Digest of Interna- 
tional Law," sec. 379. See also the Report on the subject of citizenship, expatria- 
tion, and protection abroad, H. Doc. No. 326, 59th Cong., 2d ses., to be referred 
to hereafter as the Report of the United States Citizenship Commission. 

* Wheaton, "International Law," ed. by Lawrence, p. 899. 

' Opinion of Chief Justice Taney in Scott v. Sanford, 19 How. 438. 

* Compare Cockburn, on "Nationality," pp. 6 flf.; and Burgess, "Political 
Science and' Constitutional Law," vol. I, p. 223. 



334 CITIZENSHIP AND NATIONALITY 

in determining nationality.* The jus soli rule was also 
strengthened by the spread of the feudal idea that birth 
tended to create a relationship between the individual and 
the land to which he was attached. In time, therefore, the 
jus soli became the law of the continent of Europe. It was 
introduced into England at the time of the Conquest.^ 
The "reception" of the Roman law in northern Europe in 
the later Middle Ages, however, led to the displacement of 
the jus soli rule for that.of the jus sanguinis; and the latter 
in time became dominant throughout the greater part of 
Europe, and spread to Latin America, where it prevails for 
the most part to-day. 

According to the jus sanguinis in its pure form, children, 
as has been said, take the nationality of their parents without 
regard to the place of birth. If, therefore, the father is a 
citizen or subject of the state where the birth takes place, 
the children are citizens or subjects; if he is an alien, the 
children are aliens. The law of Austria, for example, de- 
clares that "citizenship is inherent in the children of Aus- 
trian citizens by virtue of birth." ^ The French law 
declares that all persons born abroad of French fathers 
shall be considered French citizens. The Italian law 
likewise treats as citizens all children whose fathers are 
citizens.^ A similar rule prevails in many other states. 
According to the principle of the jus soli children born 
abroad of citizens are aliens in respect to the state of which 
their parents are citizens, though according to the jus san- 
guinis they would be citizens; and, conversely, those born 

* Stoicesco, "Etude sur la Nationalite," p. 286; Morse, " Citizenship," pp. 12, 
15 ; Webster, " Law of Citizenship," p. 50. 

'Compare Munroe Smith, art. "Nationality," in Lalor's "Encyclopedia of 
Political Science," vol. II, p. 944. Coke, "Commentary on the Early Laws of Eng- 
land," observed that "there are three incidents to a subject born; first, that the 
parents be under the actual obedience of the king; second, that the place of his birth 
be within the king's dominions; and third, the time of his birth." Quoted by Law- 
rence in his edition of Wheaton, p. 895. 

' Civil Code, sec. 28. * Ibid., art. 4. 



THE ACQUISITION OF CITIZENSHIP 335 

within the territory of a given state of alien parents are citi- 
zens according to the jus soli rule, but aliens according to 
the jus sanguinis. The result is numerous conflicts and Conflicts 
cases of double nationality as between states which employ the^^wo 
diff^erent rules/ England and the United States follow the Principles 
doctrine of the jus soli with regard to the nationality of 
children born of alien parents within their territory, but 
that of the jus sanguinis as regards children born of their 
own citizens or subjects abroad.^ France, on the contrary, 
follows the jus sanguinis rule for all purposes and treats 
as citizens children of French parents wherever born. 
Thus, a child born in the United States of French parents 
would, according to the law of the United States, be a citi- 
zen of the United States, jure soli; but according to French 
law it would be a citizen of France, jure sanguinis, thus 
giving rise to a case of double nationality. Conflicts of 
jurisdiction, however, are usually decided by the practice 
of states in declining to assert their claims in such cases so 
long as the citizen whose status is in dispute remains out- 

* "The occurrence of cases of double nationality acquired at birth is due mainly 
to the fundamental difference which exists between those countries whose law is 
derived mainly from feudal principles, and those countries whose law comes more 
directly from Roman sources, the former regarding the place of birth as the determin- 
ing factor in constituting the relation of sovereign and subject, while the latter look to 
the nationality of the parent, and disregard, more or less, the place of birth. Al- 
though the statute law of most countries has introduced certain modifications of each 
of these principles, the difference springing from the original sources of the system 
of law still remains. To guard effectively against the occurrence of cases of double 
nationality would require the assimilation in this respect of all the various systems of 
law prevailing in civilized communities, an ideal which, however desirable, is not 
likely to be realized." Report of the United States Citizenship Commission, 1907, 
p. 345. On the subject of double nationality, see further Morse, " Citizenship," 
pp. 104, 157; Moore, "Digest," vol. Ill, pp. 518 ff. ; Meili, "International Commer- 
cial and Civil Law," p. 120. 

^ Practically all states, even those which apply the jus soli rule within their limits, 
claim as their citizens children born abroad of their own citizens, that is to say, 
they recognize the jus sanguinis principle to a limited extent, but may and often do 
make such citizenship depend upon return to and residence within the country. 
In such cases the law not unfrequently declares that the child must upon reaching 
full age make a declaration of election or alienage. 



336 



CITIZENSHIP AND NATIONALITY 



Avoid- 
ance of 
Conflicts 



Advan- 
tages and 
Disad- 
vantages 
of each 
Rule 



side of their own jurisdiction.* Furthermore, many states 
allow persons of double nationality residing within their 
limits the right to elect the nationality which they prefer 
on attaining their majority. Thus France, while claiming 
as citizens all children born of aliens within French terri- 
tory, allows them to "decline" French citizenship the year 
following the attainment of their majority and assume the 
nationality of their fathers, by producing a certificate from 
the government of the state to which their fathers belong, 
showing that they have elected such nationality, and also a 
certificate showing that they have complied with any call 
that may have been made upon them for military service.* 
The law is the same in Belgium.' 

Each of these rules has its advantages and its disadvan- 
tages. Where the place of birth is the determining ele- 
ment, the fact of citizenship is easily proved; but in other 
respects the rule is illogical and unsatisfactory. By mak- 
ing one's status depend upon the place of birth, often a 
mere accidental circumstance, it not infrequently confers 
nationality under conditions that are absurd. Thus a 
person may be born of alien parents in a state in which the 
parents are merely visiting or in which they are tempo- 
rarily sojourning with no intention of permanently residing 
there, yet under the operation of this rule, if strictly applied, 
the child becomes a citizen of that state. The doctrine 
of the^'w5 soli is a relic of feudalism. It is true that it is a 
part of the English common law, but as only that part of 
the common law was introduced into the United States 
which was applicable to the peculiar situation of our an- 
cestors, it may well be doubted whether an institution so 



' Lawrence, " Principles of International Law," p. 192. 

' Code Civil of France, sec. 4. 

' Code Civil of Belgium, art. 9. In Denmark children born of foreigners may 
make a declaration of alienage in their nineteenth year, but they must produce proof 
that they possess citizenship in a foreign country. If they continue to reside in 
Denmark, the declaration of alienage will have no validity. 



THE AMERICAN AND ENGLISH RULE 337 

bound up with feudalism was ever suited to the conditions 
of this country/ 

The jus sanguinis rule is free from these objections, but 
it lacks the advantage of easy proof, since the proof of 
parentage is sometimes attended with practical difficulty. 
Furthermore, under this rule, a person may, while residing 
in one state, retain his foreign nationality and perpetuate 
it indefinitely if the advantages of alienage seem to outweigh 
those of citizenship. On the whole, however, the rule 
seems to be the more logical, natural, and reasonable, and 
its wide adoption in practice has led "it to be considered by 
some authorities as a part of the law of nations,^ though 
erroneously so.^ 

III. THE AMERICAN AND ENGLISH RULE 

As has been said, the doctrine of the jus soli was intro- 
duced into the United States as a part of the English com- 
mon law, though on account of its feudal origin it is doubt- 
ful whether it was not more unsuited to the situation of 
our ancestors than the rule which determines nationality 
according to descent. 

The constitution of the United States, as originally Early 
adopted, required citizenship of the United States as a ?°the°* 
qualification for membership in both Houses of Congress United 
and also for the executive office, but it failed to enumerate 
the essential elements of national citizenship, thus leaving 
the whole matter an open question. The judicial and 
executive departments as well as the commentators, how- 
ever, took the view that citizenship by birth was to be 
determined on the basis of the common law or jus soli 

' Cf. Webster, "The Law of Citizenship," pp. vii and 50. 

* See an opinion of Judge Morrow in the case of Wong Kim Ark, 71 Fed. Rep. 
382; also the opinion of the United States Supreme Court in the Slaughter-House 
cases where the court spoke of the rule of the jtis sanguinis as the "doctrine of the 
law of nations." 

' Van Dyne, " Law of Citizenship," p. 3. 
POL. SCI. — 22 



338 



CITIZENSHIP AND NATIONALITY 



The Four- 
teenth 
Amend- 
ment 



principle. This view was first laid down by Chief Justice 
Marshall in 1804/ and it was followed by the courts of 
New York State, by various Secretaries of State of the 
United States, and by the inferior courts of the United 
States.^ The doctrine of the jus soli was finally incorpo- 
rated into the constitution of the United States by the 
Fourteenth Amendment, adopted in 1868, which declares 
that "all persons born or naturalized in the United States 
and subject to the jurisdiction thereof are citizens of the 
United States and of the state wherein they reside." This 
provision is held to have been simply a reenactment of the 
common law rule, declaratory of the existing practice as 
to who were citizens.' There was some uncertainty at 
first as to the meaning of the phrase "subject to the 
jurisdiction thereof," * but it is now understood to com- 
prehend all persons born in the United States except chil- 
dren born of alien enemies in hostile occupation of the 
United States (since they would not be born under actual 
obedience) and the children of diplomatic representatives 
of foreign states. Children born in the United States of 
foreign consuls and of other foreign citizens or subjects 
residing or temporarily sojourning here are held to be 
natural-born citizens, since they are clearly subject to the 
jurisdiction of the United States. The specific point de- 
cided in the case in which the question of the status of chil- 



^ In the case of the Charming Betsey, 2 Cranch 64. 

' The Supreme Court of New York in 1844 (Lynch v. Clark, i Sandf . Ch., p. 583) 
ruled that children born of alien parents, even though temporarily residing in the 
United States, were citizens of the United States, i.e., the place of birth was the 
determining factor. See also the opinion of Secretary of State Marcy (1854), and 
that of Attorney General Bates in 1862, 10 Opinions Atty. Gen. 392. 

' Van Dyne, "Citizenship of the United States," p. 7. 

* See, e.g., the erroneous dictum of Justice Miller in the Slaughter-House cases 
(16 Wall. 73) that the above phrase was intended to exclude from its operation not 
only the children born of diplomatic representatives in the United States, but also 
the children born of consuls and of citizens or subjects of foreign countries residing in 
the United States. Cf. Burgess, "Political Science and International Law," vol. 
I, pp. 221-223 ; also Moore's American Notes to Dicey's "Conflict of Laws," p. 201. 



THE AMERICAN AND ENGLISH RULE 



339 



dren born here of domiciled aliens was definitely settled, 
was that a child born of Chinese parents in the United States 
was a citizen, though Chinese are incapable of being natu- 
ralized under the laws of the United States/ But Indians 
born within the limits of the United States of Indians who 
still maintain their tribal relations, although owing alle- 
giance to the United States, were held not to have been 
born in the United States or subject to the jurisdiction 
thereof within the meaning of the Fourteenth Amend- 
ment any more than the children of foreign diplomatic 
representatives, and hence are not considered as citizens 
until they have been naturalized.^ 

In the United States, as in England, however, the strict Modifica 
jus soli or common law rule has been modified so far as it «VjusSoii'' 
relates to the status of children born abroad of persons who Rule in the 

1 1 • • 1 • <-r>i 1 r United 

are themselves citizens or subjects. 1 hus by an act or states 
Congress of 1855, still in force, it was declared that all 
children born out of the jurisdiction of the United States of 
fathers who are citizens should be considered citizens of 
the United States. But in order to prevent the right 
of citizenship in such cases from being transmitted indefi- 
nitely to persons who had never resided here the act 
provided that the rights of citizenship should not descend 
to children whose fathers had never maintained a resi- 
dence in the United States.' A recent act of Congress, 
however, provides that children born abroad of American 
parents in order to receive the protection of the United 
States government, shall be required upon reaching the 

* Wong Kim Ark (1898), 169 U.S. 649. See also the opinion of the Department 
of State that "birth in the United States irrespective of the nationality of the parents 
confers American citizenship. In view of the decisions of our federal courts there 
can be no doubt of the correctness of this principle." "Foreign Relations of the 
United States," 1901, p. 303. 

^ Elk t'. Wilkins, 112 U.S. 99; McKay v. Campbell, 2 Sawyer, 119. 

^ U.S. Revised Statutes, sec. 1903. This provision has been interpreted as giving 
no right of inheriting nationality through women, and hence an illegitimate child 
born abroad to an American woman is not a citizen of the United States. (Moore's 
" Digest," vol. Ill, p. 285.) 



340 CITIZENSHIP AND NATIONALITY 

age of eighteen years to record at an American consulate 
their intention of becoming residents and of remaining 
citizens of the United States.^ It has been the uniform 
policy of the United States to protect such citizens until 
they have attained the age of twenty-one years, and to 
allow them upon reaching such age to elect whether they 
will remain American citizens or choose the nationality of 
the state in which they were born and reared. The new 
citizenship law of 1907, as stated above, requires a dec- 
laration of intention at the age of eighteen years — the 
period when liability to military service usually begins 
Practice in Europe. Without such a declaration the United States 
United government might be called on to protect from military 
states conscription many persons who have no intention of resid- 
ment ing in the United States or of performing the obligations 

of citizenship, but who, after shielding themselves from 
the performance of their duties to the government under 
which they reside by the ambiguity of their position accept 
the allegiance of the country of their birth. ^ But the 
United States will not protect its jure sanguinis citizens 
against the claims of the state in whose territory they were 
born if that state claims them as its citizens or subjects 
jure soli. Conversely, children of aliens born in the United 
States are not protected against the state to which their 
fathers belong if it claims them as citizens jure sanguinis. 
Likewise England, by a statute passed in the seventh year 
of Queen Anne's reign, adopted the jus sanguinis principle 
in respect to children born abroad of British subjects, it 
being provided that such persons should be deemed to be 
natural-born subjects. In the reign of George II the prin- 
ciple was further extended so as to include not only chil- 
dren born abroad of British fathers, but also those 
whose paternal grandfathers were born in his Majesty's 
dominions. 

' Act of March 2, 1907, sec. 6. 

2 United States Citizenship Commission Report, p. 17. 



CITIZENSHIP BY DIRECT GRANT OR CONFERMENT 341 

Thus, both the United States and England, where the 
doctrine of the jus soli is recognized as a part of the common 
law, have adopted the principle of the jus sanguinis for 
determining the status of children born abroad of citizen 
fathers, thus combining the two rules, rather than follow- 
ing either alone. Accordingly, children born abroad of 
United States citizens are American citizens jure sanguinis, 
while children born in the United States of aliens are Ameri- 
can citizens jure soli. 

IV. CITIZENSHIP BY DIRECT GRANT OR CONFERMENT; 
NATURALIZATION 

Citizenship may be acquired not only by birth within a Meanings 
place subject to the jurisdiction of the state or through Term* 
inheritance from a citizen father, but also by formal grant "Natural!. 

-^ . zation" 

of the state. This method is commonly called naturaliza- 
tion. In its broadest sense naturalization signifies the act 
of formally adopting a foreigner into the political body of 
the nation and of clothing him with the privileges of a 
native.^ It is a gratuitous concession to an alien, is granted 
only upon certain prescribed conditions, and may be with- 
held upon grounds of public policy or for any reason which 
in the judgment of the state may seem wise or expedient. 
Naturalization in the wider sense includes the bestowal of 
citizenship on an alien in any manner whatever, whether 
through legitimation, adoption, the naturalization of the 
children through the naturalization of the parent, the 
naturalization of a woman through marriage to a citizen, 
naturalization through the purchase of real estate, through 
service in the army or navy or the civil service, through the 
operation of the law of domicile, or through annexation 
of foreign territory, etc. In a more restricted sense natu- 
ralization has reference to the granting of citizenship by a 
court or an administrative officer after the fulfillment by 

* Minneapolis v. Raum, 12 U.S. App. 446, and Opinions of Atty. Gen., 1859, in 
the Ernst case. 



342 CITIZENSHIP AND NATIONALITY 

the applicant of certain prescribed conditions. This is the 
meaning which popular usage in the United States and 
England attaches to the term. 

In the United States the whole matter of the grant- 
ing of citizenship to aliens rests with Congress.^ Before 
1790, when Congress first legislated on the subject, the 
several states passed laws prescribing conditions under 
which aliens might be naturalized within their respective 
jurisdictions, thus raising the question as to the force and 
validity of such laws. In 18 17 the United States Supreme 
Court held that the power of Congress was exclusive, and 
this doctrine has been followed ever since. ^ "The power of 
Congress must necessarily be exclusive," argued Hamilton, 
"because if each state had power to prescribe a distinct rule 
there could not be a uniform rule as required by the con- 
stitution." ^ 
Natural!- The power to naturalize has been delegated by Congress 
thrunited ^^ Certain judicial tribunals. By the act of June 29, 1906, 
states these are: the United States circuit and district courts, 
the Supreme Court of the District of Columbia, and all 
state and territorial courts of record having a seal, a 
clerk, and a jurisdiction in actions at law or equity in 
In which the amount in controversy is unlimited.* In Bel- 

"'°^* gium, the certificate is granted by the Minister of Justice, 
but only after an authorization by the two chambers, 
which consider each application in secret session.^ In 

* Constitution of the United States, art. I, sec. 8. For the status of the question 
during the revolutionary period, see the case of Inglis v. Trustees, 3 Pet. 99; also 
Moore's "Digest," sec. 376. 

* Chirac v. Chirac, 2 Wheaton 259; Wong Kim Ark (163 U.S. 228). Between 
1776 and 1790, Delaware, Maryland, South Carolina, and Virginia passed such 
laws and granted passports to their citizens to travel abroad (U.S. Citizenship 
Commission Report p. 8). 

'"Federalist," No. 32. 

* Sec. 3. Prior to 1906 inferior courts of limited jurisdiction were empowered to 
grant certificates of naturalization, but the abuses that resulted led to the restriction 
of the privilege to inferior courts having unlimited jurisdiction. 

» Law of 1 88 1, arts. 6-8. 



CITIZENSHIP BY DIRECT GRANT OR CONFERMENT 343 

Austria, France, Hungary, and Portugal, the power to natu- 
ralize belongs to the higher administrative authorities. In 
England it rests with one of the principal secretaries of 
state, who has the right to grant or withhold the certificate 
after examining evidence which must be furnished by the 
applicant regarding his residence and intention to reside 
therein, and no appeal may be taken from his decision/ 
In Switzerland, application is made to the federal council 
(the executive), which after a hearing authorizes the coun- 
cils of the canton and the commune in which the applicant 
has taken up his residence to grant the certificate.^ In 
Germany, naturalization is granted by the administrative 
authorities of the individual states, though imperial law 
prescribes the conditions. 

Concerning the qualifications for admission to citizen- Conditions 
ship, the practice of states differs widely. In the United fn^he'*'*^'* 
States prior to 1868 only free white persons were capable of United 
being naturalized. By the act of 1870, still in force, the 
privileges of naturalization were extended to "aliens of 
African nativity and to persons of African descent." Under 
the present law, therefore, only "white persons" and "per- 
sons of African descent" are embraced within the operation 
of the naturalization law.^ Indians are excluded from the 
benefits of naturalization under the general laws, though 
they may be, and often have been, naturalized by special 
acts or by treaty. Chinese are excluded by act of Congress 
from being naturalized, though under the interpretation of 
the Fourteenth Amendment they may acquire American 
citizenship by birth in the United States. So Japanese, 
Burmese, and Hawaiians are excluded, since they are neither 

white persons ' ' nor ' ' persons of African descent. ' ' * So are 

* Prior to 1847 the only method of naturalization in Great Britain was by means of 
a special act of Parliament or by letters of denization from the crown. In Great 
Britain, as in the United States, special acts are still sometimes passed, though with 
increasing rarity. 

* Law of 1903, arts. 2-3. ' U.S. Revised Statutes, sec. 2169. 

* Van Dyne, "Citizenship," p. 57. 



344 CITIZENSHIP AND NATIONALITY , 

alien enemies, polygamists, and disbelievers in, or opponents 
of, organized government, or advocates of the assassina- 
tion of public officers or members of organizations or bodies 
teaching such doctrines.* In the United States the appli- 
cant for naturalization must have "behaved as a person of 
good moral character," and must be "attached to the prin- 
ciples of the constitution and well disposed to the good 
order and happiness of the same." ^ By the recent act of 
1906 he must also be able to read and speak the English 
language. Mexico excludes convicted pirates, slavehold- 
ers, incendiaries, counterfeiters of money, murderers, kid- 
nappers, and robbers, and requires the applicant to have a 
business, trade, or profession or an income capable of support- 
ing him. Peru has a similar requirement.' Hungary re- 
quires blameless character and evidence of visible means 
In of support for the applicant and his family.* Norway re- 

"'°^" quires security that the applicant and his family shall not 
become a public charge. Portugal and Sweden require 
evidence of ability to earn a livelihood, and Sweden in 
addition insists on the possession of good moral character. 
The Netherlands require the applicant to furnish proof 
that the laws of his country place no obstacle in the way 
of his naturalization by another state.^ Germany requires 
the applicant to be capable of managing his own affairs, to 
have led an irreproachable life, and to possess ability to sup- 
port himself and those dependent on him. Before a certifi- 
cate of naturalization is granted, the authorities granting it 
must receive a report from the local authorities to the effect 
that the applicant has a residence of his own or some place 
of shelter.® 

Nearly all states require a period of residence as a condi- 

^ Act of June 29, 1906, sees. 4 and 7. 

' For the judicial interpretation of these conditions see the U.S. Citizenship 
Commission Report, pp. 115-118; also Moore's "Digest," sec. 383. 

* Law of 1886, sees. 11-16 and 21-22. * Law of 1879, sec. 8. 

• Law of 1892, art. 3. • Law of 1870, sec. 8. 



CITIZENSHIP BY DIRECT GRANT OR CONFERMENT 345 

tion to naturalization. In Portugal, Bolivia, and Ecuador Residence 
this period is one year, though in the case of aliens descended ^g^^g"" 
from Portuguese and in the case of foreigners who marry 
Portuguese women no specific period of residence is required. 
In Argentina, San Domingo, Switzerland, and Mexico the 
period required is two years, an exception being made by 
Mexico of aliens serving in the merchant marine. Only 
one year's residence is required in such cases. In Sweden, 
the period of residence required is three years, though a less 
time may be demanded if the applicant has distinguished 
himself by extraordinary skill in science or art, agriculture, 
mining, or other occupation, or if his naturalization would 
in other respects be of benefit to the kingdom.^ Italy 
requires a residence of six years or service under the gov- 
ernment for four years, but the residence requirement may 
be reduced to three years if the applicant is the husband of 
an Italian woman or has rendered important service to the 
state.^ In the United States, Hungary, Great Britain, 
Japan, and the Netherlands, this period is five years; though 
in Great Britain the residence requirement is waived if 
the applicant has been in the service of the crown for that 
length of time, and in Japan it is not required if the wife 
of the applicant is a Japanese woman. In Argentina no 
specified period of residence is required where the alien has 
held public office in the state, served in the army or navy, 
introduced a new and useful invention, constructed a 
railroad, or married an Argentine woman. ^ In the United 
States a period of one year's residence suffices for aliens 
who have served in the army and been honorably dis- 
charged. In England the applicant must also declare his 
intention to reside in the kingdom and serve under the 
crown. In Austria and France a residence of ten years is 
required; and in the latter country the applicant must 
establish a domicile within three years after receiving the 

' Regulations of 1S58, sec. 2. ' Law of 1906, art. i. 

^ Law of June 26, 1889. 



346 



CITIZENSHIP AND NATIONALITY 



Effect of 
Naturali- 
zation 



English 
Distinc- 
tion be- 
tween 
Naturali- 
zation and 
Deniza- 
tion 



certificate, but this may be reduced to one year if he has 
served the state or displayed exceptional talents or has 
introduced into France any useful industry or invention. 

The effect of naturalization according to the law of most 
states is to invest the alien with all the rights of a natural- 
born citizen or subject, though a few exceptions are sometimes 
made. Thus the British naturalization act declares that a 
naturalized subject shall be entitled to all political and other 
rights and privileges and be subject to all the obligations 
to which a natural-born Englishman is subject, except that 
when he is within the limits of the state of which he was 
formerly a subject he shall not be deemed a British subject 
unless he has ceased to be a subject of that state in pursu- 
ance of its laws or of a treaty stipulation. Thus a Russian 
or a Turkish subject naturalized in Great Britain without 
the consent of his government will be treated as a British 
subject everywhere except in Russia or Turkey. In 
those countries he will be treated as an alien to Great Brit- 
ain and denied the protection of the British government, 
because those states do not recognize the right of their 
subjects to renounce their allegiance for a new one. The 
British Naturalization Commission of 1901 recommended 
that all differences between the status of a natural-born and 
a naturalized British subject should as far as possible be 
abolished. It is especially desirable, said the commission, 
that a naturalized alien should, like a natural-born British 
subject, remain a British subject everywhere and for all 
purposes unless, and until, he divests himself of, or loses 
his nationality in one of the ways provided by law. 

British law and practice make a distinction between 
naturalization and denization, the former being granted in 
pursuance of an act of Parliament, the latter by a grant of 
the crown by letters patent. The right of denization is an 
ancient prerogative of the crown, and though preserved 
by the naturalization act of 1870, Is very rarely resorted to. 
While naturalization places an alien in the same position 



CITIZENSHIP BY DIRECT GRANT OR CONFERMENT 347 

as if he were a natural-born subject, theoretically a denizen 
occupies a rather intermediate position between an alien 
and a natural-born subject and partakes of both charac- 
teristics/ But there is not much practical difference in 
effect. A denizen cannot, however, be a member of the 
Privy Council, or of either House of Parliament, or hold 
any office of trust, civil or military, or take a grant of lands 
from the crown.^ Some states, notably Belgium and 
France, make a distinction between "grand" naturaliza- Conti- 
tion and "ordinary" naturalization. The former alone °i^°^n*^" 
has the effect of placing an alien on a footing of political between^ 
equality with a person of native birth. To acquire and"Ordi- 
" grand" naturalization in Belgium, the applicant must be ^^^'^ 
twenty years of age, must be married, or, if a widower, zation * 
must have one or more children, or must have resided 
in Belgium at least ten years, which may be reduced to 
five years in case the applicant has married a Belgian 
woman. Grand naturalization cannot be granted to un- 
married foreigners or childless widowers until they have 
reached the age of forty years and resided in Belgium fifteen 
years. "Ordinary" naturalization may be granted to 
aliens who have attained the age of twenty-one years and 
resided in Belgium five years.^ 

In the United States the only distinction between a natu- Naturai- 
ral-born and a naturalized citizen is that contained in the Na^turai- 
national constitution, which restricts the offices of Presi- i^ed evi- 
dent and Vice President of the United States to natural- united 
born citizens. In all other respects the two classes of citi- ^***®^ 
zens are on a footing of absolute civil and political equality, 
and they are protected equally and alike everywhere, in 
the country of origin as well as in other states. Until the 
middle of the nineteenth century, however, the rule was 
frequently laid down by American publicists and followed 

* Cockburn, on "Nationality," p. 28. 

* Westiake, "Private International Law," p. 327. 
' Naturalization Law of 1881. 



348 CITIZENSHIP AND NATIONALITY 

in practice by secretaries of state (notably by Webster 
and Everett) that a naturalized citizen was not entitled 
to the protection of the United States government in the 
country of his origin. If, therefore, an alien after becom- 
ing naturalized in the United States returned to his native 
country, the government of his adopted country would not 
intervene in his behalf against the claim of his native state 
to his services. James Buchanan, however, Secretary 
of State, in 1848, in an instruction to George Bancroft, 
then Minister to England, declared that the United States 
government would recognize no distinction between natu- 
ral-born and naturalized citizens in respect to their right 
of protection. Again in 1859, after he had become Rresident 
of the United States, he vigorously cotnbated the doctrine 
that a naturalized citizen was not entitled to protection 
against the claims of his native state, and asserted that "our 
government is bound to protect the rights of naturalized 
citizens everywhere to the same extent as though they had 
drawn their first breath in this country." "We recognize 
no distinction," he said, "between our native and natu- 
ralized citizens." ^ This view has since been uniformly acted 
on by succeeding presidents, and indeed would seem to be 
obligatory on the executive, since the statutes expressly 
declare that all naturalized citizens of the United States 
while in foreign countries are entitled to and shall receive 
from this government the same protection of person and 
property which is accorded to natural-born citizens.^ The 
European doctrine that a naturalized alien shall not be 
considered a citizen or subject in the country of his origin 
when the latter refuses to admit the right of expatriation 
is virtually the recognition of the existence of a dual alle- 
giance. It rests on the theory that naturalization does 
not necessarily substitute a new nationality in the place of 
the old, but merely adds to it a new allegiance so that the 

* Quoted in Moore, "American Diplomacy," p. 182. 
' Revised Statutes, sec. 2000. 



OTHER MODES OF ACQUIRING CITIZENSHIP 349 

person naturalized becomes subject to a double allegiance, 
his status in any case depending on the place of his 
domicile.^ 

V. OTHER MODES OF ACQUIRING CITIZENSHIP 

In addition to naturalization proper, citizenship may be Through 
acquired through other modes, such as marriage, legitima- of^ReaT* 
tion, adoption, the purchase of real estate, long residence Estate or 
in the country, entrance into the public service of a state, ment to 
and the political incorporation of foreign territory. Citi- Republic 
zenship is acquired by legitimation where an illegitimate 
child of a citizen father and an alien mother is legiti- 
mized. In Mexico and Peru purchase of real estate by 
an alien operates ipso facto to confer citizenship on the 
purchaser. In Peru, all instruments for the transfer of 
land to aliens must contain an express renunciation of 
foreign citizenship by the purchaser. By Mexican law 
foreign purchasers of real estate in the republic are treated 
as citizens unless at the times of purchase they make an 
express declaration of intention to retain their original 
nationality. According to Brazilian law ten years' resi- 
dence in the republic confers citizenship on an alien unless 
within a certain period he makes a declaration of alienage. 
Appointment of aliens to positions in the public service of 
some states, of which Austria and Norway are examples, 
has the effect of naturalizing the persons so appointed.^ 

Citizenship is conferred on large bodies of inhabitants in Through 
their collective capacity by the annexation of new territory, ticm^^/*'^^' 
through purchase, gift, conquest, or other mode. By the pub- Foreign 
lie law of most states the inhabitants of territories acquired 

'Compare Moore, "American Diplomacy," p. 192. "The doctrine of dual 
allegiance," says Professor Moore, "is, in a word, the precise test, the acceptance of 
which distinguishes those who reject the doctrine of voluntary expatriation from 
those who support it." 

^ The new citizenship law of the United States recognizes this as one of the modes 
by which American citizenship may be lost, though there is no express provision to 
the effect that an alien may acquire American citizenship in this way. 



350 CITIZENSHIP AND NATIONALITY 

by cession or conquest take the nationality of the state under 
whose dominion they pass, subject usually to the provision 
that they may elect to retain their former nationality by 
removal or otherwise. While, however, the inhabitants 
of the territory transferred acquire a new allegiance and a 
new citizenship and incur new political obligations, their 
relations with one another are not changed. That is to 
say, the public law to which they are subject alone is 
changed, the private law being left as it was until super- 
seded or modified by the new sovereign.^ It was by annexa- 
tion that the inhabitants of Florida, Louisiana, Texas, 
California, Alaska, and Hawaii became citizens of the 
United States. In the case of Louisiana, Florida, and 
Alaska the treaties of cession provided that the inhabit- 
ants of the ceded territory should be admitted as soon as 
possible, according to the principles of the federal consti- 
tution, to the enjoyment of all the rights, advantages, and 
immunities of citizens of the United States, though in the 
case of Alaska the uncivilized native tribes were excluded. 
As regards the inhabitants of Porto Rico and the Philip- 
pine Islands, the treaty of cession provided that their 
Citizen- civil status should be determined by Congress. The 
Unfted*^* treaty, therefore, did not itself confer upon them the status 
States^ of citizenship, though as regards the inhabitants of Porto 
Rico the United States Supreme Court has held that they 
are not aliens in the sense in which the term is used in the 
immigration laws.^ By acts of Congress for the govern- 
ment of Porto Rico and the Philippines the inhabitants 
have been declared to be citizens of their respective islands, 
but not citizens of the United States. This is the only 

* American Insurance Co. v. Canter, i Pet. 511. It is very unusual, says the 
U.S. Supreme Court, even in case of conquest, for the conqueror to do more than to 
displace the sovereign and assume dominion over the country. The people change 
their allegiance, their relation to their ancient sovereign is dissolved ; but their rela- 
tions to each other and their rights of property remain undisturbed. See also U.S. 
V. Buchanan, 7 Pet. 511. 

* Gonzales t'. Williams (1904), 192 U.S. i. 



Depend- 
encies 



OTHER MODES OF ACQUIRING CITIZENSHIP 351 

instance of the acquisition of foreign territory by the 
United States in which the inhabitants of the ceded territory 
were not promised or granted the rights of citizenship. 
Nevertheless, they are entitled to the fullest protection of 
the government of the United States, and passports are 
issued to them for their identification in foreign countries. 
Not infrequently, as has been intimated, the right of 
the inhabitants of ceded territories to retain their orig- 
inal nationality under certain conditions is expressly 
recognized in the treaty of cession. Thus the treaty of 
peace between the United States and Mexico of 1848 
contained a stipulation permitting Mexican citizens resid- 
ing in the territory ceded to the United States to retain 
their Mexican nationality provided they should make a 
formal election thereof within a year from the date of 
the exchange of ratifications. In the event of failure to 
declare their intention within the period mentioned, they 
were to be considered as having elected to become citizens 
of the United States. Similarly, the treaty of peace be- 
tween France and Germany in 1871 allowed native-born 
Frenchmen of Alsace-Lorraine to retain their French na- 
tionality by making a declaration of intention within a 
certain period and by removing their domiciles to France. 
A more recent instance of the kind is found in the treaty 
of Dec. 10, 1898, between the United States and Spain, which 
permitted Spanish subjects residing in the territory ceded 
to the United States to preserve their Spanish allegiance 
by making a declaration within a year from the exchange of 
ratifications, in default of which they were to be considered 
as having abandoned their old allegiance. The benefits 
of the provision, however, do not apply to the Filipino 
population, but only to the natives of the Spanish king- 
dom, including the Balearic and Canary Islands.^ Other 

* On the subject of collective naturalization by treaty, see Moore, "Digest," sec. 
379; Morse, "Citizenship," p. 129; Van Dyne, "Citizenship," part II, ch. 4; U.S. 
Citizenship Report, pp. 155-158; and Boyd v. Thayer, 143 U.S. 135. 



352 CITIZENSHIP AND NATIONALITY 

instances of collective naturalization are afforded by the 
various treaties and acts of Congress by which citizenship 
has been conferred on Indian tribes/ 

VI. CITIZENSHIP IN A FEDERAL STATE 

Provisions The inhabitants of states in which the federal system of 
Four- government prevails are usually clothed with a dual citizen- 
teenth gj^jp ^j^jj allegiance; one, general or national, the other 

Amend- ^ , . . 

ment local. The constitution of the United States as originally 

adopted (Art. Ill, sec. 2) speaks both of citizens of the 
United States and of citizens of the several states, although 
it, does not define either national or state citizenship or give 
any indication of what was then considered their constitu- 
ent elements. The Fourteenth Amendment, adopted in 
1868, cleared up the uncertainty by declaring that all 
persons born or naturalized in the United States, and sub- 
ject to its jurisdiction, were citizens of the United States, 
and by further declaring that all such persons should be 
considered as citizens of the several states in which they 
were resident. As regards any persons, however, upon 
whom the citizenship of the United States has not been 
conferred, the states are free to withhold or grant their own 
citizenship under such conditions as they may see fit to 
prescribe. The Fourteenth Amendment merely incor- 
porated into the constitution what Chief Justice Marshall 
had long before held to be the unwritten law and practice 
in regard to citizenship of the United States and of the 
states. In a noted case decided by him in 1832 he declared 
that "a citizen of the United States residing in any state 
of the union is a citizen of that state." ^ 

Many of the state constitutions define "state" citizenship 
in similar terms, rather superfluously, it would seem, in view 

• For a list of such treaties and acts of Congress, see the case of Elk v. Wilkins, 
112 U.S. 94. See also a full collection in "Indian Affairs, Laws and Treaties," 
2 vols., 1903. 

' Gassies v. Ballou, 6 Pet. 6i. 



CITIZENSHIP IN A FEDERAL STATE 353 

of the federal provision.* But the possession of United The states 
States citizenship alone does not necessarily make one a J^y^thej^ 
citizen of a particular state. An important element is own citi- 
necessary to convert the former into the latter, namely, Aliens 
residence within the state. As has been said, there is no 
constitutional reason why the states may not confer their 
own citizenship on other persons than United States citi- 
zens resident within their limits, and as a matter of fact 
a number of them have done so. Some of them have not 
only placed resident aliens on a footing of absolute civil 
equality with citizens of the United States residing within 
their jurisdictions, but have even granted full political 
privileges to such as have declared their intention of becom- 
ing citizens of the United States.^ Likewise a state may 
provide for the forfeiture or renunciation of its citizenship 
by judicial condemnation or long residence abroad, without 
in any way affecting the national citizenship.^ As a conse- 
quence, federal and state citizenship are not identical and 

' In Virginia it is declared that all persons born in the state, all persons born in any 
other state of the Union, who may be or become residents of the state; all aliens 
naturalized under the laws of the United States who are or may become residents of 
the state; all persons who have obtained a right to citizenship under former laws; 
and all children, wherever born, whose father, or if he be dead, whose mother, 
shall be a citizen of the state at the time of the birth of such children, shall be deemed 
citizens of the state. Code (1904), by Pollard, sec. 39. 

^ Some courts, however, have der'ed the doctrine that there can be a citizen of a 
state who is not also a citizen of the United States, and hence that state citizenship 
can only be acquired through the acquisition of federal citizenship (Lanz v. Randall 
(1876), 4 Dill 428). In this case a United States Circuit Court of Appeals expressed 
the opinion that no state could make an alien a citizen of the state in any other mode 
than that provided by the naturalization laws of Congress. But generally the courts 
have held the contrary and with more reason. See, e.g.. In re Wehiltz (1863), 6 Wis. 
443. As the right of suffrage within certain limits is determined by the several states, 
it follows that they may confer the right to vote for President and Vice President and 
for Representatives in Congress on those upon whom the United States has not con- 
ferred the rights of national citizenship. It is therefore something of an anomaly that 
the right which is popularly deemed the test of citizenship (the right to vote) may be 
exercised by persons who are not citizens. The courts of some of the states have, 
indeed, held that one may be an elector without even being a citizen of the state in 
which he votes. 

' Talbot V. Jansen (1795), 3 Dall. 183 ; Prentice v. Brannan, 2 Blatch. 162. 
POL. SCI. — 23 



354 



CITIZENSHIP AND NATIONALITY 



Federal 
and State 
Citizen- 
ship not 
Coinci- 
dent 



National 
Citizen- 
ship is 
Para- 
mount 



coexistent, since there may obviously be a class of state 
citizens upon whom the United States government has not 
conferred the rights and privileges of national citizenship. 
It is hardly necessary to add that there is also a class of 
United States citizens who are not endowed with the citi- 
zenship of any state. Such, for example, are those resident 
in the territories, dependencies, and federal districts and 
also possibly some American citizens residing abroad. 
From this it follows that while state citizenship is in most 
cases obtained through the acquisition of federal citizen- 
ship, — that is, it is generally a consequence of the latter, 
— it is not necessarily so. 

From the first, the courts of the United States have recog- 
nized the existence of two citizenships, perfectly distinct, 
and, from some viewpoints, wholly independent of each 
other. "It is quite clear," said the United States Supreme 
Court in the Slaughter-House cases, "that there is a citizen- 
ship of the United States and a citizenship of a state, which 
are distinct from each other and which depend upon differ- 
ent characteristics or circumstances in the individual." ^ 
The question as to which of these allegiances is paramount 
was long a source of constitutional controversy in the United 
States. For a long time the states rights school of political 
thinkers contended that citizenship of the United States 
was but the consequence of citizenship in some state, and 
the Supreme Court in the Dred Scott case inclined to the 
same view.^ According to this view state citizenship was 
the source of federal citizenship; the former was primary, 
the latter secondary, and in case of conflict the allegiance of 
the citizen to his state was considered paramount. But 
the question was finally settled by the Civil War and the 



' 16 Wall. 36, 73 ; cf. also Boyd v. Thayer, 143 U.S. 135. The dual allegiance of 

the citizen under the American federal system was recognized and its nature well 

stated by the U.S. Supreme Court in the case of Cruikshank (1875), 91 U.S. 542, 550. 

' Burgess, "Political Science and Constitutional Law," vol. I, p. 219; John C. 

Calhoun, Works, vol. II, p. 242 ; Scott v. Sanford, 19 How. p. 393. 



CITIZENSHIP IN A FEDERAL STATE 355 

adoption of the Fourteenth Amendment. According to 
this amendment the old view was reversed and citizenship 
of the United States was made primary and original, and 
that of the state secondary and derivative. The former 
was made the chief source, and the latter the consequence. 

In the United States the citizenship of a particular state 
may be relinquished by a mere change of residence with- 
out any further formality, and the citizenship of another 
state may be acquired by establishing a domicile therein, 
also without any legal formality. The statutes of several 
states make express provision to this effect.* 

The constitution of the United States declares that the interstate 
citizens of each state shall enjoy all the privileges and im- citfzen° 
munities of citizens of the several states, but it does not ^'"p 
undertake to define those privileges and immunities. The 
Supreme Court of the United States has declined to specify 
what they are, preferring to decide each case as it arises, 
in the light of the particular circumstances.^ Justice 
Washington, sitting in the United States Circuit Court, 
said, "We feel no hesitation In confining these expressions 
to those privileges and Immunities which are in their nature 
fundamental, which belong of right to the citizens of all 
free governments, and which have at all times been en- 
joyed by the citizens of the several states which compose 
this Union from the time of their becoming free, independ- 
ent, and sovereign. What those fundamental principles 
are it would perhaps be more tedious than difficult to 
determine." ^ 

' The statutes of several states also make express provision for a formal renuncia- 
tion of citizenship. Thus Virginia, Kentucky, and Georgia provide for formal relin- 
quishment of citizenship by declaration made in court, but in each case removal 
from the state must follow in order to make the renunciation valid. 

* McCready v. Virginia, 92 U.S. 391. In this case the court held that the right 
of a state's own citizens to the enjoyment of its oyster fisheries was a privilege of 
state citizenship and could not be claimed by the citizens of other states as a right 
of general citizenship. 

' Corfield v. Coryell, 4 Wash. U.S.C.C. Rep. 380. 



356 



CITIZENSHIP AND NATIONALITY 



Privileges 
and Im- 
munities 
of Federal 
Citizen- 
ship 



Citizen- 
ship in the 
German 
Empire 



The constitution of the United States (Fourteenth 
Amendment) speaks also of the privileges and immunities 
of citizens of the United States and forbids the states 
from making or enforcing any laws which shall abridge 
those privileges and immunities, but, as is the case with 
state citizens, it does not undertake to specify them or 
indicate their nature. The United States Supreme Court, 
in the Slaughter-House cases, in interpreting this provi- 
sion of the Fourteenth Amendment, held that it did not 
confer any new privileges or immunities on United States 
citizens, nor attempt to enumerate or define those already 
existing, but merely assumed that there were such privi- 
leges and immunities which belong of right to citizens as 
such and which shall not be abridged by state legislation. 
The court, however, took occasion to enumerate what it 
considered to be some of the most important rights of 
federal citizenship, among them being those mentioned in 
the Civil Rights Act of 1866; namely, the right to make 
and enforce contracts ; to sue in the courts ; to be parties and 
give evidence; to inherit, purchase, lease, hold, and con- 
vey real and personal property; and to have full and 
equal benefit of all laws and proceedings for the security 
of person and property. 

In other federal states the relation between national and 
local citizenship is somewhat different from that in the 
United States. The constitution of the German Empire 
(art. 3) declares that there shall exist a common citizen- 
ship (Indigenai) for all Germany. It also recognizes the ex- 
istence of a particular citizenship in each state and declares 
that the citizens or subjects (Staatsbiirger, Staatsange- 
horige) of each shall be treated in every other state of the 
empire as natives and shall be admitted to all civil rights 
enjoyed by natives and upon the same conditions. Con- 
trary to the rule prevailing in the United States, state 
citizenship in Germany is original and primary, while 
imperial citizenship is derivative and secondary; that is, 



CITIZENSHIP IN A FEDERAL STATE 357 

state citizenship is the source and imperial citizenship the 
consequence. Citizenship of a particular state carries with 
it ipso jure citizenship of the empire and is an essential 
condition of imperial citizenship, for the latter can be 
acquired only through the former. In the United States, 
as we have seen, one may possess national citizenship 
without possessing the citizenship of a state ; but in Germany 
it is otherwise. No one can become a citizen of the Empire 
without first becoming a citizen of one of the individual 
states. There is no immediate naturalization by the empire 
as such; the power of conferring citizenship rests with the 
states, though imperial law prescribes, within certain limits, 
the conditions under which it may be granted. Imperial 
citizenship, therefore, is dependent upon the citizenship of interstatt 
some state and is lost with the loss of state citizenship, ship in' 
Contrary also to the principle prevailing in the United Germany 
States, mere change of residence from one state of the em- 
pire to another does not of itself operate to divest one of 
the citizenship of the state from which the removal is made, 
nor invest with the citizenship of the state in which the 
new domicile is established. Citizenship in the former 
state is retained until the relationship has been dissolved 
by some legal act of the party in accordance with the 
formalities prescribed by the law of the state for renounc- 
ing citizenship. It is possible, therefore, for one to retain 
his citizenship in one state for an indefinite period and even 
for the period of his whole life, while residing in another 
state. In like manner, citizenship in another state is not 
acquired by merely establishing a domicile therein, but is 
granted by the administrative authorities by formal act 
only upon application of the party. In other words, a 
citizen of one German state becomes a citizen of another, 
not alone by the establishment of a residence, but by a 
formal transaction between himself and the state.* It is 
not necessary, according to German law, to relinquish the 

' Compare Howard, " German Empire," pp. 144 fiF. 



358 CITIZENSHIP AND NATIONALITY 

citizenship of one state in order to become a citizen of 

another. Indeed, one may be a citizen of several or even 

of all the German states at the same time. 

Citizen- Swiss law, like that of the German Empire, makes citi- 

Switzer- zenship in a canton an essential condition to, and the source 

land Qf^ citizenship of the confederation.^ Federal legislation 

prescribes the conditions under which foreigners may be 

naturalized, but the act of naturalization is performed by 

the government of the canton in which the applicant is 

domiciled and in accordance with its own laws, though 

the authorization of the Federal Council is necessary. 

VII. LOSS OF CITIZENSHIP 

As citizenship may be acquired by various methods^ so 
it may be lost in numerous ways. Women lose their citi- 
zenship by marriage to aliens. Under the laws of many 
states acceptance of service, civil, military, or naval, under 
a foreign government, without the permission of the govern- 
ment to which the appointee owes allegiance, involves a 
forfeiture of citizenship. By the laws of Bolivia and Portu- 
gal the acceptance of a decoration from a foreign govern- 
ment has the same effect. In some states, desertion from 
the military or naval service has the effect of denationaliz- 
ing the deserter. In many states, particularly those of Latin 
America, citizenship may be lost by judicial condemna- 
tion for certain causes. In a few it may be lost by expul- 
sion and in some by dismissal or "liberation." 
Loss of By the law of many states long absence abroad operates 

S!ip by" ^^ expatriate the absentee. Thus the law of Denmark, the 
Absence Netherlands, and Sweden provides that ten years' consecu- 
tive absence, without a declaration of intention to the con- 
trary, works expatriation, and by Danish law the declaration 

' Constitution of the Confederation, art. 43. See also the act of June 25, 1903, 
relative to the naturalization of foreigners ; also Blumer and Morel, " Handbuch des 
schweizerischen Bundesstaatsrechts," vol. I, p. 330. 



LOSS OF CITIZENSHIP 359 

must be repeated every two years. According to Hungarian 
law ten years' residence abroad without a commission from 
the government has the same effect, in the absence of a 
notice of intention to retain Hungarian nationality, or the 
performance of certain other acts indicating a desire to 
remain a Hungarian. The law of Belgium provides that 
settling in a foreign country without intention of returning 
shall have the same effect. According to French law the 
maintenance of a permanent establishment abroad was 
formerly considered evidence of intention on the part of 
the absentee to abandon his French nationality; but the 
practice now is to consider the absentee a Frenchman 
until he formally renounces his French nationality and 
assumes another. By German law ten years uninterrupted 
residence abroad operates to expatriate a German subject. 
But this period may be "interrupted" by registering with a 
consul or by procuring a passport. The period has been 
reduced to five years by treaty with some states, provided 
the absentee is naturalized abroad at the expiration of the 
five years.^ 

By far the most common mode, however, by which citi- Practice 
zenship may be lost is by the voluntary withdrawal of the *^triation 
citizen from the country of his origin and his naturalization 
in the state of his adoption. Regarding the right of the 
citizen or subject voluntarily to expatriate himself and 
take up a new allegiance without regard to the will of the 
state of which he is a member, the attitude of governments 
has differed widely in the past, though the tendency every- 
where is now to recognize the privilege as an inherent 
right of every individual. Some, like Russia and Turkey, 
however, wholly deny the right and allow no subject to 

* Some states make a distinction between suspension and loss of citizenship. Thus 
according to the law of Brazil, Chile, Ecuador, Norway, Peru, San Salvador, and 
Uruguay, one's citizenship may be suspended for physical or moral incapacity or 
for judicial condemnation for certain crimes. See Constitution of Brazil, art. 71; 
Constitution of Chile, art. 9; Constitution of Columbia, art. 17; Constitution of Ec- 
iiador, ch. II, sec. 2; Constitutionof Norway, art. 51; Constitutionof Peru, art. 40. 



360 



CITIZENSHIP AND NATIONALITY 



The 

English 
Common 
Law 
Doctrine 



leave their territories without the express permission of the 
state; and in case a subject emigrates without such per- 
mission and renounces his allegiance, he will upon his 
return to the country of his origin be liable to arrest and 
punishment. Some states, like France, recognize the right 
of expatriation, provided there exists at the time of emi- 
gration no unperformed military service, otherwise natu- 
ralization by a foreign government will be considered 
void, and upon the return of the person so naturalized 
he will be liable to trial and punishment under the mili- 
tary laws. Some, like Switzerland, admit the right of 
expatriation, but do not recognize the legality of naturali- 
zation in a foreign country unless the person so natu- 
ralized makes an express and formal written renunciation 
of his original citizenship, in the country of origin and 
according to the forms prescribed by its laws, and also 
furnishes proof of his naturalization abroad. Others, like 
Venezuela, recognize the right of expatriation, but upon the 
return of the person so naturalized to his original country, 
he will be allowed to resume his original nationality with- 
out further formality. Japan excepts from the right of 
expatriation all males over seventeen years of age who 
have not performed their service in the army or navy in 
pursuance of the conscription law, and also those in the 
military and civil service who have not obtained permission 
to emigrate.^ Most governments now freely admit the 
right of expatriation and consider the original nationality 
to be terminated at the moment when the act of naturali- 
zation by the foreign government has been completed. 

The doctrine of the English common law was that of 
indefeasible allegiance, the nemo potest exuere patriam of the 
Roman law, that is, the subject could not of his own motion 
throw off his allegiance for another. Once an Englishman 
always an Englishman, was the rule stated in an aphorism, 
except that the old allegiance might be abandoned for a 

' U.S. Citizenship Report, p. 444. 



LOSS OF CITIZENSHIP 361 

new one with the consent of the sovereign. Without such 
consent, naturalization by a foreign government had no 
effect upon the former nationahty. The tendency of the 
early jurists and commentators in the United States was 
to hold that the English common law rule of indefeasible 
allegiance prevailed in this country, and hence no American 
citizen could renounce his allegiance without the permission 
of the government. This was the opinion of Chancellor 
Kent and of many of the early American publicists, with 
the notable exception of Jefferson, who vigorously supported 
the right of voluntary expatriation.* Judge Story, in a 
celebrated case, laid down the rule that no individual 
could by act of his own and without the consent of his 
government put off his allegiance and become an alien, 
and this doctrine was generally approved by the courts 
and commentators.^ 

The opinions of the executive department varied at first Early 
more widely, but as time passed the right of expatriation o^njo"" 
came to be recognized almost without dissent. James and 
Buchanan, in 1845, then Secretary of State, first asserted 
it to be an unqualified right of the citizen or subject; and 
several years later, in a dispatch to George Bancroft, 
Minister to England, he instructed him to resist the British 
doctrine of perpetual allegiance and maintain the American 
principle that natural-born subjects of Great Britain who 
should become naturalized under the laws of the United 
States were as much American citizens and entitled to the 
same degree of protection as though they had been born in 
the United States.^ For a while after Buchanan's retire- 
ment the executive department reverted to the earlier 

^ Jefferson's Works, vol. IV, p. 37. 

* See also 2 Kent's Commentaries, p. 49; Wharton, "Conflict of Laws," sec. 5; 
Lawrence's "Wheaton," i App. p. 918; Moore's "Digest," vol. Ill, sees. 431- 
433; Inglis V. Trustees of Sailors' Snug Harbor, 3 Pet. 99; Shanks i*. Dupont, 
3 Pet. 242; Talbot v. Jansen, 3 Dall. 133; Murray v. Schooner Charming Betsey^ 
2 Cranch 64. 

^ Moore's "Digest," vol. Ill, p. 566; also his "American Diplomacy," ch. VII. 



362 CITIZENSHIP AND NATIONALITY 

Right of doctrine; but both Marcy and Cass as Secretaries of State 
Uon^^cog- reasserted the unqualified right of expatriation ; and finally 
nized in Congress, by an act passed in 1868, declared it to be an "in- 
states and herent right of all people," and asserted that "any declara- 
Engiand tion, instruction, opinion, order, or decision . . . which 
denies, restricts, or impairs the right of expatriation" was 
"incompatible with the fundamental principles of this 
government." The act further declared that naturalized 
citizens of the United States should while abroad be en- 
titled to the same protection that is accorded natural-born 
citizens and that it should be the duty of the President to 
use any means not amounting to war to enforce this view as 
against any government which should deprive any natu- 
ralized American of his liberty contrary to this principle. 
This law "s still in force/ Two years later Great Britain 
by an act of Parliament abandoned the doctrine of indelible 
allegiance and adopted the rule that any British subject, 
not under disability, and voluntarily naturalized in a foreign 
state, should cease to be a British subject.^ This ended a 
long controversy between the two governments, concern- 
ing the refusal of Great Britain to recognize the legality 
of the acts by which British subjects were naturalized in 
the United States — a controversy which had been one 
of the chief causes of the War of 1812. 
Denied by Turkey and Russia, as has been stated, do not recognize 
and ^^ the right of voluntary expatriation; and if a subject of 
Russia either state becomes naturalized abroad without the per- 
mission of his government, such naturalization is treated as 
having no efTect. Many states of Europe, while willing to 
naturalize aliens of Ottoman nationality and protect them 
in other countries equally with native-born subjects, 
nevertheless refuse to grant them protection whenever they 
return to Turkey. Some, however, like France, Belgium, 

^ Revised Statutes of the United States, sees. 1 999-2001. 

' Act of May 14, 1870. For a discussion of the English doctrine at present, see 
Phillimore, "International Law," vol. IV, p. 195. 



WHAT CONSTITUTES EXPATRIATION? 363 

and Holland, refuse to naturalize Ottoman subjects unless 
they are able to produce a permit from the Turkish gov- 
ernment authorizing their naturalization. The United 
States stands practically alone in claiming for its natu- 
ralized citizens of Turkish origin the same right when they 
return to Turkey that they enjoy in other countries. 

Most states make provision by which the original citi- Repa- 
zenship of a subject who has become naturalized abroad *"***°'* 
may be resumed. Such an act is referred to variously as 
reversion of nationality, repatriation, and redintegration. 
According to Belgian and French law, resumption of citi- 
zenship may take place by returning home and making a 
formal declaration of intention to reside there, and by es- 
tablishing a domicile. Italian, Spanish, and Portuguese 
law requires substantially the same action. According to 
British law an Englishman naturalized abroad may be 
readmitted to the status of a British subject by the same 
process that is required of any other alien; but while in the 
limits of the foreign state of which he was previously a 
subject he will be treated as an alien unless he has ceased 
to be a subject of such state according to its laws govern- 
ing expatriation. United States law makes no provision 
in regard to the repatriation of an American citizen who 
has been naturalized abroad, except in the case of women 
married to aliens; but the opinion seems to be that it can 
be accomplished only in the mode prescribed for the 
naturalization of other aliens. 

VIII. WHAT CONSTITUTES EXPATRIATION? 

According to the practice of many European states, as we Practice 
have said, a certain number of years of residence abroad, American 
whether followed by naturalization In the adopted state or Depart- 
not, operates to expatriate the absentee; but the practice state 
of the United States government has been to treat contin- 
ued absence from the country only as a presumption of 



364 CITIZENSHIP AND NATIONALITY 

intention to abandon its nationality. Indeed, as Secretary 
Fish said, in 1873, "continuous absence from this country 
does not necessarily presume expatriation," since there may 
always be the purpose of returning. "A citizen of the 
United States," said Secretary Evarts, in 1879, "may be 
absent from this country for an indefinite period for purposes 
of education, of business, or of pleasure, and so long as he 
does no act or assumes no obligation inconsistent with his 
native or acquired citizenship in this country he is not held 
under our laws to have forfeited any of his rights as a citizen 
of the United States." The question of the loss of citizen- 
ship is determined largely by the intent of the party, which 
intention is to be inferred from his acts and all the surround- 
ing circumstances of the case. It is not to be determined 
by mere lapse of time or term of residence abroad, however 
extended in duration. 
Act of The recent act of March 2, 1907, relative to the expatria- 

J^^7^ ^' tion of citizens and their protection abroad, represents the 
first attempt to define by legislative act what acts shall 
aperate to expatriate an American citizen. This law 
enacts, first, that any American citizen shall be deemed to 
have expatriated himself when he has been naturalized 
in any foreign state in conformity with its laws or when he 
has taken an oath of allegiance to any foreign state; and, 
second, that when any naturalized citizen shall have resided 
for two years in the state of his origin, or five years in any 
other foreign state, it shall be presumed that he has ceased 
to be an American citizen . . . provided, however, that such 
presumption may be overcome on the presentation of 
satisfactory evidence to a diplomatic or consular officer of 
the United States, and provided also that no American citi- 
zen shall be allowed to expatriate himself when the United 
States is at war.^ Under this act an American citizen 

^ Sec, 2. Sec. 15 of the naturalization act of June 29, 1906, declares that if any 
naturalized citizen shall within five years after naturalization take permanent resi- 
dence in any foreign country it shall be considered prima facie evidence of intent to 



THE STATUS OF ALIENS 365 

may still reside abroad indefinitely as before, though after 
two years' residence in the country of origin or five years in 
another country the abandonment of his American national- 
ity will be presumed and the burden of proving an intention 
to the contrary will rest upon him. 

IX. THE STATUS OF ALIENS * 

Aliens are of two classes : first, those who have estab- classes of 
lished a residence in the state, who are designated as resi- ■^''®°' 
dent or domiciled aliens; and second, those who are mere 
temporary sojourners. Again, they may be subjects of a 
friendly power, in which case they are styled alien friends; 
or they may be the subjects of a hostile state, in which 
case they are described as alien enemies. Although in 
a political sense aliens are members of other states, 
legally, they are fully subject to the jurisdiction of the 
state in which they are domiciled or in which they are 
sojourning; unless, as is the case with diplomatic represen- 
tatives, they are exempt from the local jurisdiction by treaty 
stipulation or the law of nations. They are held to owe the 
state in which they are domiciled a local and temporary 
allegiance, which continues during their residence and for 
the violation of which they are liable to prosecution for 
treason equally with a citizen.^ Aliens must obey the laws 
of the state in which they are domiciled or suffer punish- 
ment equally with citizens. And they must also share in 

abandon his citizenship and in the absence of countervailing evidence his naturali- 
zation certificate may be canceled. The constitution of Mexico, art. 10, declares 
that the naturalization of an alien is rendered void by two years' residence in the 
country of his birth except with the permission of the government; that is, the two 
years* residence is not merely presumption of abandonment of the new citizenship, 
but is absolutely conclusive. 

' For an excellent brief discussion of the rights of aliens, see Bonfils, "Manuel 
de Droit international public," sees. 441-454; see also Meili, "International Com- 
mercial and Civil Law," sees. 41 ff. ; Webster, "Law of Citizenship," pp. 289 ff.; 
Wise, "Citizenship," pp. 267 ff. ; Moore, "Digest," vol. IV, sees. 534-558; "Eng- 
lish and American Encyclopedia of Law," vol. II, art. "Aliens." 

2 Carlisle v. U.S., 16 Wall. 147 (1872). 



366 



CITIZENSHIP AND NATIONALITY 



Liability 
to Con- 
scription 
in the 
Military 
Service 



Right to 
Protec- 
tion 



the public burdens equally with citizens. The settled 
opinion seems to be that they are not liable to conscription 
into the military service, though the British government 
admitted, during the American Civil War, when complaint 
was made that British subjects were being forced to serve 
in the Virginia and Missouri militia, that "there was no 
rule or principle of international law which prohibits the 
government of any country from requiring aliens resident 
within its territories to serve in the militia or police of the 
country, or to contribute to the support of such establish- 
ment." ^ During the Civil War all aliens who had held 
office or exercised the right to vote at a state election were 
held to be liable to conscription in the national forces and 
the act of Congress of March 3, 1863, declared that the levy 
should include "all persons of foreign birth who shall have 
declared on oath their intention to become citizens." ^ 
Upon the suggestion of the British government that a dis- 
tinction ought to be made between declarants who had 
exercised any political franchise and those who had not, 
and that the latter should be allowed a reasonable period 
to withdraw from the United States if they so elected, the 
government allowed sixty-five days to such persons to leave 
the country. Thereupon the British government declined 
to intervene on behalf of those who neglected to avail 
themselves of the opportunity.^ The law of Mexico de- 
clares that aliens shall be exempt from military service, and 
if domiciled within the state they are bound to perform 
police service when the security of property or the main- 
tenance of local order requires it.^ 

Among the rights which aliens are universally admitted 
to possess is that of protection in their persons and property. 
Most governments of Europe and America grant the same 



* Moore's "Digest," vol. IV, p. 57. ^ 12 Statutes at Large 731. 
' See Halleck's "International Law " (Baker's ed.), vol. I, p. 305. 

* Law of 1886, art 37. As to the right to require aliens to aid in the local defense, 
see Bonfils, "Manuel de Droit international public," sec. 445. 



THE STATUS OF ALIENS 367 

measure of personal protection to aliens as to citizens, and 
in general make no distinction between them so far as the 
enjoyment of civil rights is concerned, though as regards 
political privileges they are usually subject to certain dis- 
abilities. If they suffer injury during times of riot, disor- 
der, insurrection, or civil war, they are in the same position 
as citizens and can lay claim to no greater degree of pro- 
tection than is accorded to natives. But it is now a settled 
principle of international law that the government to which 
they are for the time subject is liable for any injuries which 
they may sustain on account of attacks upon them because 
of their foreign nationality, if the local authorities fail to 
use reasonable diligence to prevent or punish such crimes. 
The United States government has uniformly refused to 
admit such a liability, but in a number of cases it has 
indemnified the injured parties or their heirs by a money 
compensation.^ But the injured alien must first exhaust 
the judicial remedies before resorting to diplomatic inter- 
position. In the United States both the federal and state 
courts are open to aliens on the same terms as to citizens. Right to 
and as regards the right to sue in the federal courts resi- c"ur?s*^* 
dence in the United States is not necessary.^ Some coun- 
tries in their treatment of aliens make special discrimina- Discrimi- 
tions against certain classes on account of their race, creed, °^*\°° 

° _ ' ' against 

or occupation. Russia, for example, has long discrimi- Aliens 
nated against Jews in respect to holding property, engag- 
ing in certain occupations, and traveling or settling in 
the country. 

Formerly aliens were subject to disabilities much more Disabm- 
numerous and onerous than now. Such were the droit ^j? °* 
d'aubaine and the droit de detraction, according to which 

^ This was done, for example, in the case of the anti-Spanish riots at New Orleans 
and Key West in 1851 ; the anti-Chinese riot at Rock Springs, Wyoming, in 1SS5 ; and 
the Italian iynchings at New Orleans in 1891. Moore's "Digest," sees. 1023-1026. 

- Breedlove v. Nicolet, 7 Pet. 413. This privilege applies to foreign corporations 

as well as to natural persons. 



36S 



CITIZENSHIP AND NATIONALITY 



In 

England 
and the 
United 
States 



the property of aliens escheated to the state in which 
they died, or was subject to partial confiscation. These 
disabilities were common to European law a century ago, 
but were never recognized as being in force in the United 
States, and in some of the early treaties with European 
countries stipulations were entered into for the abolition 
of the practice. At English common law an alien might 
take real property by purchase or grant, that is, by act 
of the parties, though not by descent, that is, by act 
of the law.* In the latter case the land could be held as 
against all parties but the state. But the disabilities of the 
common law in respect to the inheritance of land have been 
removed or modified by statute both in England and Amer- 
ica. Thus the British naturalization act of 1870 declares 
that real and personal property of every description may 
be taken, acquired, and disposed of by an alien in the 
same manner in all respects as by a native-born British 
subject, and a title to real and personal property of every 
description may be derived through, from, or in succession 
to, an alien in the same manner in all respects as from or 
in succession to a native-born British subject.^ 

In England an alien may now hold all forms of personal 
property except British ships, ^ though prior to 1844 he was 
disqualified from holding certain other descriptions of per- 
sonal property. In the United States, where the owner- 
ship of property is within the control of the states except 
in the territories and in those portions of the country 
which are under the exclusive jurisdiction of the national 
government, the right of aliens in respect to the acquisition 
and holding of property depends, of course, upon the laws of 
the different states in which the lands are situate. Most 
of the states now permit aliens to acquire and own lands 



• Justice Story in Fairfax's Devisee v. Hunter's Lessee, 7 Cranch 619. See list of 
cases on this point in the " English and American Encyclopedia of Law," art. 
"Aliens." 

' Sec. 2. * Ibid., sec. 14. 



THE STATUS OF ALIENS 369 

on an equal footing with citizens, though in a few, like Kan- 
sas and Idaho, the common law disability still remains. 
Many states distinguish in this respect between resident and 
non-resident ahens, excluding the latter from owning real 
estate. A few, like Alabama, however, permit non-resident 
and resident aliens alike to take lands by descent as well as 
by purchase. Under the laws of Delaware, Kentucky, New 
York, and Washington an alien who has declared his in- 
tention of becoming a citizen of the United States enjoys 
greater rights in respect to the holding of property than 
other aliens; and in some states, notably in Illinois and 
Idaho, aliens may be employed on -public works, while 
others may not. With regard to the right of ahens to hold 
land in places subject to the exclusive jurisdiction of the 
national government, Congress has enacted that no alien 
or foreign corporation shall be allowed to acquire or hold 
land in the District of Columbia,^ and that no alien who 
has not declared his intention to become a citizen of the 
United States may own lands in any of the territories un- 
less the right is secured to him by treaty.^ 

In some instances treaties have been entered into by Treaty 
which aliens are allowed to purchase and hold lands in Aifen?°* 
the United States, and although under the reserved powers 
of the states the right of foreigners to acquire title to real 
estate is dependent upon the laws of the states, as has 
been said, the Supreme Court has held that the treaty right 
is paramount. Hence a state statute prohibiting aliens 
from holding lands is inoperative so far as it relates to the 
citizens or subjects of a foreign country who have been given 
the right by treaty.^ The power of the national author- 
ities thus to abridge by treaty the right of the states to pre- 
scribe the conditions of land tenure within their borders was 
earlydenied, butthe SupremeCourt of the United States has 
held that such treaty stipulations are clearly within the com- 

* Act of March 3, 1887. ^ Act of March 2, 1897. 

^ Chirac v. Chirac, 2 Wheat. 249. 
POL. SCI. — 24 



370 CITIZENSHIP AND NATIONALITY 

petence of the national government.^ In short, the national 
government possesses the constitutional power to remove 
the disabilities of alienage with regard to the Inheritance of 
real estate and, when It acts, all laws of the states In contra- 
vention thereto are Inoperative and void. But It Is doubtful 
whether the treaty-making power extends to such matters 
as the conferring upon aliens of equal privileges with citi- 
zens in the public schools of the states.^ Nevertheless, it has 
recently been held that a statute of New York forbidding 
the employment of aliens on public works violates a treaty 
between the United States and the king of Italy, providing 
that resident Italians in the United States shall enjoy the 
same rights and privileges as citizens of the United States, 
and Is therefore void. The Italian civil code expressly 
declares that aliens shall enjoy the same civil rights as 
citizens.^ This Is the tendency of modern legislation. 

" Modern international law," says Professor Melli, "starts 
with the proposition that aliens are as much entitled to the 
rights of private law as are natives." * Some states, like 
Austria and France, follow the rule of reciprocity and accord 
to aliens In their territories the same civil rights as are 
accorded to their citizens or subjects in foreign states.^ 
Some countries, of which Roumania is an example, abso- 
lutely forbid aliens to own landed property except In cities.^ 

^ Hauenstein v. Lynham, loo U.S. 483. 

* These two questions were involved in the recent controversy with Japan with 
regard to privileges of Japanese subjects in the public schools of California. The 
Board of Education of the city of San Francisco passed an ordinance providing 
for the segregation of Japanese school children in a certain school, whereupon 
the Japanese government protested and laid claim to equal privileges with citizens. 
The Japanese government based its claim on the treaty of 1894, which stipulates for 
full liberty of travel and residence in the United States and full and perfect protec- 
tion of person and property. See Hershey, "The Japanese School Question," in 
"Political Science Review," vol. I, p. 393. 

» Art. 3. 

* "International Commercial and Civil Law," trans, by Kuhn, sec. 41; see also 
Bonfils, op. cit., sec. 449. 

» French Civil Code, art. 11 ; Civil Code of Austria, sec. 33. 

* Constitution, art. 7. 



THE STATUS OF ALIENS 371 

For the enjoyment of political or public rights, alienage Political 
generally disqualifies. Thus in Great Britain, where for- ^^'^^ 
eigners are on a footing of equality with citizens so far as 
civil rights are concerned, they are ineligible to public 
office and are disqualified from exercising any parliament- 
ary, municipal, or other franchise/ In the United States 
an alien cannot be a master of a vessel registered under the 
navigation laws. Citizenship is required by the federal 
constitution for membership in both Houses of Congress, and 
for the office of President and Vice President, though there 
seems to be no statutory requirement in this respect with 
regard to other offices. Aliens who have declared their 
intention of becoming citizens of the United States are 
allowed to vote at state and national elections in a number 
of states, and as a consequence may probably hold office.^ 

It is hardly necessary to add that the undoubted right Right of 
which every state has to determine for itself who shall live ^^ 
within its borders carries with it the right, in the absence 
of treaty stipulations to the contrary, to expel from its 
territories aliens whose presence is considered detrimental 
to the public interest, and to refuse admission for the same 
reason or admit upon such conditions as it may see fit to 
prescribe. This follows as a logical consequence of the sover- 
eignty of the state. In ancient times, says Bonfils, collec- 
tive expulsion of aliens was frequently resorted to, though 
in modern times it has rarely been followed except in case of 
war.' Some writers, like Bluntschli, have denied the right 
of expulsion except in rare cases and under severe limita- 

* Naturalization Act of 1870, sec. 14. 

' For example, in the states of Arkansas, Indiana, Kansas, Missouri, Nebraska, 
South Dakota, Texas, Oregon, and Wisconsin. 

' "Manuel de Droit international public," i sec. 442. See also Vattel, "Droit 
des Gens," bk. 2, sees. 94, loi; Phillimore, "International Law," vol. I, ch. 10, 
sec. 120; Moore's "Digest," vol. IV, sec. 550; Danut, "De I'Expulsion des 
T^trangers "(1902); Wise, "Citizenship," pp. 269 flf. The United States Supreme 
Court has affirmed the right of the government to exclude or expel aliens, as an inher- 
ent right of sovereignty and as essential to self-preservation. Nishimura Ekin v. 
U.S. (1892), 142 U.S. 659. 



372 CITIZENSHIP AND NATIONALITY 

tions, but the practice of states has been otherwise. In the 
United States it cannot be done by administrative act ex- 
cept in time of war, though under the ahen act in force from 
1798 to 1800 the President was given the power to expel 
such ahens as he should deem to be dangerous to the peace 
and safety of the United States. In Europe and Latin 
America, however, expulsion by administrative order or 
decree is not uncommon. 

The right of expulsion, however, as Calvo observes, is not 
without its limitations; and when resorted to by a govern- 
ment in an arbitrary manner and without sufficient cause, 
the state of which the foreigner is a citizen or subject may 
justly prefer a claim for what is unquestionably a violation 
of international law and may, if satisfaction is not given, in- 
tervene in behalf of the injured person.^ This has been 
the attitude of the United States government whenever the 
rights of its own citizens have been involved. It has read- 
ily admitted the right of expulsion and has confined its 
action in such cases merely to the employment of its good 
offices in behalf of the person expelled, except where the 
act was clearly arbitrary and without just cause.^ 

^ According to Hall (" International Law," p. 24), expulsion may be resorted to 
only in extreme cases and in the manner least injurious to the person affected. 
The government exercising the power must, when occasion demands, state the 
reason for expulsion before an international tribunal and, an insufficient reason or 
none being advanced, accept the consequences. 

'' For instances of such cases, see Moore's "Digest," sec. 551. 



CHAPTER XII 

THE CONSTITUTION OF THE STATE 

Suggested Readings: Amos, "Science of Politics," ch. i; BoR- 
GEAUD, "Adoption and Amendment of Constitutions," chs. i, 6; 
BouTMY, "Constitutional Studies," pts. I and II; Bryce, "Consti- 
tutions," in his "Studies in History and Jurisprudence" vol. I; Bur- 
gess, "Political Science and Constitutional Law," vol. I, pt. II, bk. 
I, ch. i; CoOLEY, "Constitutional Limitations," chs. i, 4; also his 
"Comparative Merits of Written and Unwritten Constitutions," in the 
"Harvard Law Review," vol. II; Dealey, "Our State Constitu- 
tions"; DoDD, "Modern Constitutions"; Esmein, "Droit constitu- 
tionnel," pt. II, ch. 7; Funck-Brentano, "La Politique," ch. 4; 
Garner, "The Amendment of State Constitutions" in the " American 
Political Science Review," vol. I; Jameson, " Constitutional Conven- 
tions," ch. 2; Jellinek, "Recht des modernen Staates," bk. II, ch. 15; 
Lowell, "The Government of England," vol. I, ch. i ; Maine, " Pop- 
ular Government," Essay No. IV; McKechnie, "The State and the 
Individual," ch. 5; Pradier-Fodere, "Principes generaux de Droit, 
de Politique, etc., ch. 8; Schouler, "Ideals of the Republic," 
ch. 6; Stimson, "The American Constitution," ch. i; also his 
"Federal and State Constitutions of the United States," ch. i; 
TiEDEMAN, "The Unwritten Constitution," ch. 12; Wilson, "Con- 
stitutional Government in the United States," ch. i; Woolsey, 
"Political Science," vol. I, sec. 176. 

I. DEFINITIONS AND DISTINCTIONS 

The word "constitution" as a term of political science The Term 
was first employed to designate certain laws or statutes tutkm"' 
issued by the English crown. Thus the famous statutes of 
Henry II concerning the relations between the king and 
clergy were styled the "Constitutions of Clarendon." ^ The 
term was also used in the second and third charters granted 
early in the seventeenth century to the Virginia company;^ 
in William Penn's "Frame of Government for Pennsylva- 

' Stubbs, "Select Charters," pp. 137-140. 

^ Preston's "Documents Illustrative of American History," p. 33 

373 



374 THE CONSTITUTION OF THE STATE 

nia "in 1682 ; in Sidney's work on government written dur- 
ing the reign of Charles II; in the poHtical works of James 
Harrington ; and in various other places. Among the more 
immediate precursors of the modern written constitution 
may be mentioned : the charters granted to the English colo- 
nies in America; the celebrated "Agreement of the People," 
drawn up by Cromwell's soldiers in 1647 ; "The Instrument 
of Government" of the Protectorate, promulgated by 
Cromwell in 1653; "The Fundamental Orders" of the Col- 
ony of Connecticut (1639) ; and the various Declarations 
and Resolves drawn up by the American colonies prior to the 
Revolution.^ In the latter part of the seventeenth century 
the term gradually came to signify the more fundamental 
laws and especially those which related to the organization 
of the government.^ The modern use of the term was 
finally established when it was applied to the new instru- 
ments of government adopted by the American colonies 
after their separation from Great Britain in the latter part 
of the eighteenth century. Since then the term has had a 
definite and well-understood meaning, namely, the body of 
fundamental law, either written or customary, which has to 
do with the organization of the state. 
Every The historian Lecky speaks of the English constitution 

must have ^^ ^^^ time of the Restoration of 1660 as "still unformed," 
aConsti- as though there could be a stage in the development of the 
state when it was without a constitution. But every com- 
munity entitled to the name of a state, as Schulze remarks, 
must have a constitution, i.e. a collection of norms by which 
I the legal relations between magistracy and subjects is de- 
termined and In accordance with which the exercise of the 
power of the state is regulated. The state, in short, is 
unthinkable wi^thout a constitution of some kind.^ It may, 

'Compare Borgeaud, "Adoption and Amendment of Constitutions," ch. i, 
also an article by the same author in the "Political Science Quarterly," vol. VII, 
pp. 614 ff. See also Bryce, "American Commonwealth," ch. 35. 

* Compare Macy, "The English Constitution," p. 452. 

• "Deutsches Staatsrecht," vol. I, p. 19. 



tution 



DEFINITIONS AND DISTINCTIONS 375 

of course, be rudimentary and imperfect, but its existence 
is an essential element of state organization. 

The constitution may be considered as an object i ve fact, in The Con- 
which sense the term refers to the totality of the constituent ^^^^^^'^^w 

. _ •' as an Ob- 

elements which enter into the physical and political make- jective 
up o£the state. In this sense the term is used somewhat asanin- 
as it is in natural science, as when we speak of the constitu- strument 
tion of an animal or a plant, and hence includes the land dence 
and people as well as the political institutions of the state. 
Secondly, it may be considered as an instrument of evidence, 
that is, as a document or collection of documents in which 
is embodied a description of the fundamental political 
organization of the state. It is, says one writer, an ex- 
pression or embodiment in technical language of certain 
formulas addressed to the citizens of the state.^ The con- 
stitution as a written instrument and the constitution as an 
objective fact ought to harmonize, but owing to constantly 
changing conditions in society there is frequent variance 
between them. 

A distinction is sometimes made between the real and 
the formal constitution, the one being the actual historical 
constitution which has evolved under the operation of po- 
litical and social forces, and the constitution which in fact 
is administered and which the people obey,^ the other 
being the constitution in theory, the lawyers' constitution, 
the actual legal instrument stripped of all its conventions 
and historical addenda. The former is the formal consti- 
tution modified, expanded, and adapted to new conditions 
by convention and extra-legal practices. 

Popular usage, however, restricts the use of the term 
to that body of fundamental laws and principles accord- 
ing to which the state is objectively organized and 
its functions exercised rather than its physical frame- 

* Jameson, "The Constitutional Convention," p. 66. 

' Compare Mulford, "The Nation," p. 144; Brownson, "The American Repub- 
lic," p. 218 ; and Hurd's " Law of Freedom and Bondage," vol. I, p. 296. 



376 THE CONSTITUTION OF THE STATE 

work. The term is sometimes used also to designate an 
ideal, an imaginary model of excellence, rather than some- 
thing which has a real existence, as when we speak of the 
maxims, the spirit, or the theory of the constitution, meaning 
some supposed rule or principle to which in our judgment 
the constitution ought to conform. 
Defini- " By the constitutionof astate," said Sir JamesMcIutosh, 

the°Con- " ^ mean the body of those written or unwritten fundamen- 
stitution tal laws which regulate the most important rights of the 
higher magistrates and the most essential privileges of the 
subjects." ^ "The term," said George Cornwall Lewis, "sig- 
nifies the arrangement and distribution of the sovereign 
power in the community, or the form of the government." ^ 
Judge Cooley defined a constitution as "the fundamental 
law of the state, containing the principles upon which 
government is founded, regulating the division of the 
sovereign powers and directing to what persons each of these 
powers is to be confided and the manner in which it is to be 
exercised." " Perhaps an equally complete and accurate 
definition," he continued, " would be the body of rules and 
maxims in accordance with which the powers of sovereignty 
are habitually exercised . " ^ Charles Borgeaud , a high author- 
ity on the subject of constitutions as instruments of govern- 
ment, says: "A constitution is the fundamental law accord- 
ing to which the government of a state is organized and 
agreeably to which the relations of individuals or moral 
persons to the community are determined. It may be a 
written instrument, a precise text or series of texts enacted 
at a given time by a sovereign power; or it may be the 
more or less definite result of a series of legislative acts, 
ordinances, judicial decisions, precedents, and customs of 
diverse origin and of unequal value and importance." * "A 

* "Law of Nature and of Nations," p. 65. 

' "Use and Abuse of Political Terms," p. 20. 

* "Constitutional Limitations " (7th ed.), p. 4. 

* "The Origin of Written Constitutions," "Political Science Quarterly," vol. VII, 
p. 613. For a slightly different definition by the same author, see his " Adoption and 



CLASSIFICATION OF CONSTITUTIONS 377 

■constitution in the American sense of the word," said Mr. 
Justice Miller, "is a written instrument by which the fun- 
damental powers of government are established, limited, 
and defined, and by which those powers are distributed 
among several departments for their more safe and useful 
exercise for the benefit of the body politic." ^ 

II. CLASSIFICATION OF CONSTITUTIONS 

Considered with reference to the degree of popular par- 
ticipation in the government which they allow, constitu- 
tions have been classified by various writers as " free," 
"democratic," "aristocratic," etc. Considered as instru- 
ments of evidence, they have been classified, first, as 
cumulative or evolved; and second, as conventional or 

Amendment of Constitutions," p. xv. Other definitions are the following: "A 
constitution is a fundamental law or basis of government. It is established by the 
people in their original sovereign capacity to promote their own happiness and per- 
manently to secure their rights of property, independence, and common welfare." 
— Justice Story. "The constitution of a state or nation consists of those of its rules or 
laws which determine the form of its government and the respective rights and 
duties of it toward its citizens and of the citizens toward the government." — James 
Bryce, "American Commonwealth," p. 350. "The constitution of a government is 
the body or collection of rules and principles in accordance with which the powers of 
that government are exercised ; and a constitutional government is one the powers 
of which are exercised in accordance with rules and principles which are generally 
accepted as binding upon it and usually followed." — Emlin McClain, "Constitu- 
tional Law in the United States," p. 11. "Constitutions are the assemblage of those 
publicly acknowledged principles which are deemed fundamental to the government 
of a people. They refer either to the relation in which the citizen stands to the state 
at large, and, consequently, to the government or to the proper delineation of the 
various spheres of authority. They may be collected, written, and may have been 
pronounced at a certain date, such as the constitution of the United States ; or the 
fundamental principles may be scattered, in acknowledged usages and precedents, in 
various charters, privileges, bills of rights, laws, decisions of courts, agreements be- 
tween contending or otherwise different parties, etc., such as the constitution of 
Great Britain is." — Lieber, "Political Ethics," vol. I, p. 336. For other definitions 
see Lowell, , "Government of England," vol. I, p. i; Paley, "Moral and Political 
Philosophy," p. 219; Moore, "Government of Australia," p. 75; Wood, "Govern- 
ment and State," ch. 5. For a definition by the United States Supreme Court, 
see the case of Van Horn v. Dorrance, 2 Dall. 304. 

^ Quoted by Morse in his " Citizenship by Birth and Naturalization," p. 165. 



378 THE CONSTITUTION OF THE STATE 

enacted.* To the first class belong those which have their 
origin mainly in custom, and which consist for the most part 
of accumulated usages, common law principles, decisions 
of courts, etc. They are the product of historical evo- 
lution and growth rather than of deliberate and formal 
enactment. They have no conscious starting point, are 
not "struck off" at a specific date, and they change by slow 
and gradual accretion rather than by formal legal processes. 
To the second class belong those which have been formally 
enacted by an assembly, or promulgated by some individual, 
usually a hereditary ruler, at a specific time, and the pre- 
scriptions of which are embodied in a written instrument. 
Enacted constitutions thus fall into two groups or classes: 
first, those which have their source in a royal grant; and, 
second, those which proceed from the people organized 
in constituent assembly.^ 
Distinc- The distinction between evolved and enacted constitu- 

between tions coincides roughly with the old and commonly observed 
Evolved distinction between unwritten and written constitutions. 
Enacted A so-callcd uuwrittcn constitution is one in which jnost, 
H°°f^^' but not all, of the prescriptions have never been reduced 
to writing; that is, they have not been proclaimed by a 
ruler or framed by an assembly at a particular time and 
embodied in a formal written instrument. It consists 
largely of a mass of customs, usages, and judicial decisions, 
together with a smaller body of statutory enactments of 
a fundamental character, usually bearing different dates. 
Constitutions of this class are not struck off at once by 
the hand of man; they are good illustrations of Sir James 
Mcintosh's dictum that constitutions grow instead of being 
made. 

^ Jameson, "Constitutional Conventions," sec. 72; Lieber, "Civil Liberty and 
Self-government," p. 166; Ordronaux, "Constitutional Legislation," p. 207. See 
also Borgeaud, "Adoption and Amendment of Constitutions," p. 43; Lowell, 
"Government of England," vol. I, p. 4. 

*This corresponds roughly to Borgeaud's classification as (i) compacts and 
royal charters and (2) popular constitutions. Op. cit., p. 43. 



tions 



CLASSIFICATION OF CONSTITUTIONS 379 

A written constitution, on the contrary, is one in which Written 
most of^ the provisions are embodied in a formally enacted written" 
written instrument or instruments. It is a work of con- Consti- 
scious art and the result of a deliberate effort to lay down 
once for all a body of coherent principles under which gov- 
ernment shall be organized and conducted/ The distinc- 
tion between a written and an unwritten constitution corre- 
sponds roughly to that between statute and common law, 
the lex scripta and the lex non scripta of the Romans. Some 
writers have, without doing violence to the facts, described 
the former as "statutory" constitutions and the latter as 
"common law" constitutions. 

Generally, a written constitution is, as has been said, 
comprised within a single document bearing a single date, 
but there are examples of written constitutions composed 
of a series of instruments bearing different dates. Such are 
the ''Lois constituHonnelles" of France, three in number; 
together with several amendments, which collectively 
make up the constitution of the French Republic. Simi- 
larly the constitution of Austria embraces five fundamental 
statutes, all, however, bearing the same date. They could 

^ "An unwritten constitution," says Jameson, "is made up largely of customs and 
judicial decisions, the former more or less evanescent and intangible since in a written 
form they exist only in the unofficial collections or commentaries of publicists or 
lawyers." Op. cit., p. 76. " It is a record by more or less competent observers of 
fundamental changes which have occurred in the structure, principles, or guaranties 
of the constitution considered as a fact. These changes are not made, but work 
themselves out under the operation of determinate social and political forces. They 
do not evolve themselves per saltuvi, as in written constitutions, but gradually and 
continuously. They who transcribe such a constitution merely watch, pen in hand, 
the play of the producing forces and note results as they are achieved. These results 
become parts of the constitution as a fact, and the delineation of them, made by the 
observer, a part of theunwritten constitutionconsidered asan instrument of evidence." 
Ihid., sec. 78. Compare Bryce, "Flexible and Rigid Constitutions," p. 6, an essay 
originally published in his "Studies in History and Jurisprudence," vol. I, but 
subsequently reprinted by itself in a separate volume under the above title. See 
also an article entitled "Unwritten Constitutions in the United States," by Emlin 
McClain, "Harvard Law Review," vol. XV, pp. 531-540; and an article entitled 
"Written and Unwritten Constitutions in the United States," by the same author, 
in the "Columbia Law Review," vol. VI, pp. 69 ff. 



380 THE CONSTITUTION OF THE STATE 

as well have all been embraced within a single document.* 
Again, the constitution of Hungary consists of a long series 
of statutes and diplomas extending through a period of 
more than six and a half centuries (1222-1873).^ Gener- 
ally, a written constitution is an instrument of special 
sanctity, distinct in character from all other laws, pro- 
ceeding from a different source, having a higher legal au- 
thority, and alterable by a procedure different from that 
required in amending an ordinary statute. It rests on the 
principle of separation between the constituent and law- 
making powers. In states having written constitutions 
there are thus two sets of lawmaking authorities and two 
bodies of law, one constitutional and paramount, the other 
statutory and subordinate. The latter, to be valid or "con- 
stitutional," must conform in its provisions to the former. 
Written The above-mentioned distinction, however, is not al- 

tutions ways found in states having written constitutions, though 
framed by it is usual. There are a few examples of written constitu- 
tive Bodies tions which have not had their source in constituent as- 
semblies, but have emanated from ordinary legislative bod- 
ies, and differ, therefore, from mere statutes, not in any legal 
sense, but only in the greater importance of the subject 
matter with which they deal. Thus the fundamental or 
constitutional laws of Austria and Hungary are nothing but 
statutes enacted by the parliaments of the two countries.^ 
Similarly the Italian constitution (the statuto), though not a 
statute of parliament (having been granted by the king), 
is nevertheless on a legal plane with an ordinary statute 
and is probably alterable by the ordinary processes of legis- 
lation. So the constitution of Spain framed by a constit- 
uent Cortes contains no provision for its amendment, and 

* Cf. Lowell, "Governments and Parties in Continental Europe," vol. II, p. 74. 

^ Ibid., p. 128. The text of these constitutions, translated into English, with 
accompanying historical notes and select bibliographies are printed in Dodd's 
"Modern Constitutions," 2 vols. 1909. 

' The fundamental laws of Austria, however, are not alterable as ordinary stat- 
utes. See Dodd, op. cil., vol. I, p. 81, sec. 15. 



CLASSIFICATION OF CONSTITUTIONS 381 

can therefore probably be changed by the legislature as an 
ordinary statute, though as to this there is some doubt. 
In such states the constituent and legislative functions are 
not separate, and consequently a constitutional enactment 
has no superior legal force over a statute. 

Not a few written constitutions have had their origin, Consti- 
as has been said, in the grants of ruling princes, made often *^anted 
under the pressure of necessity to prevent threatened re- ^y Kings 
volt. Such a constitution or charter is generally in the Pnnces 
nature of a compact or pledge, that the ruler granting it 
will govern according to certain principles set forth in its 
text. Sometimes it is stipulated in the constitution that it 
shall not be amended without the consent of the people; 
sometimes the prince reserves, to himself the right of altera- 
tion. Examples of charters or constitutions of this type 
were those granted by various liberal princes of Germany 
to their subjects after 18 15, beginning with Nassau and 
ending with Prussia in 1849, the latter of which is still in 
force; the constitutional charter granted to the French by 
Louis XVIII in 18 14 and regranted in altered form by 
Louis Philippe in 1830; the constitutions granted by the 
king of Portugal in the early part of the nineteenth century; 
various constitutions granted by Napoleon to the states 
which fell under his dominion;^ the present constitution 
of Italy, granted by Charles Albert to his Sardinian sub- 
jects in 1848, which became the fundamental law of Italy 
upon the establishment of the Italian kingdom, and the 
more recent constitutions of Japan, Russia, Turkey, and 
Persia.^ Practically all the other written constitutions of 

* For a list see Borgeaud, op. cit., p. 32. 

^ The late Judge Cooley denied that such documents were true constitutions. 
Nothing short of a body of rules which is permanent in character and beyond the 
power of any ruler to set aside and whose source is the people, he declared, was en- 
titled to be ranked as a constitution. The mere grant by a monarch, he said, of a 
constitution to the people, did not impart a constitutional character to the govern- 
ment so long as he retained the power to set it aside at his will. " Constitutional 
Limitations," 7th ed., p. 5, note 2. 



382 THE CONSTITUTION OF THE STATE 

the world have been framed by constituent bodies or 
legislative assemblies claiming constituent powers. From 
the point of view of their source or origin, then, we may- 
classify constitutions as follows: (i) charters granted by 
sovereigns to their subjects; (2) constitutions framed by 
ordinary legislative assemblies; and (3) constitutions 
framed by constituent assemblies. 

III. ANGLO-AMERICAN AND FRENCH TYPES CONTRASTED 

The The best example of an unwritten constitution, so called, 

Consti- ^^ that of Great Britain, "undoubtedly the first of all free 
tution constitutions in age, in importance, and in originality," 
says a brilliant French scholar — "a constitution which 
existed with all its main features four hundred years earlier 
than any other and one which has served more or less as 
the model for all existing constitutions." ^ In its nature it is, 
says Br^^ce, a "mass of precedents carried in men's minds or 
recorded in writing, dicta of lawyers or statesmen, customs, 
usages, understandings and beliefs, a number of statutes 
mixed up with customs and all covered over with a para- 
sitic growth of legal decisions and political habits." Dicey 
speaks of it as a sort of maze in which the wanderer is per- 
plexed by unreality, by antiquarianism, and by constitu- 
tionalism. ^ It is not a subtle contrivance of human art, 
nor the result of deliberate effort; it was never made in 
the sense in which most others were, but has grown up bit 
by bit and for the most part silently and without any ac- 
knowledged authority. "There was never any moment," 
observes Freeman, the historian, "when Englishmen drew 
out their political system in the shape of a formal docu- 
ment." ^ If it were stripped of its conventions and displayed 

^ Boutmy, "Constitutional Studies," 2d ed., p. 3. 

^ "The Law of the Constitution," 2d ed., p. 7. 

'"Growth of the English Constitution," p. 22. "The English Constitution," 
says Boutmy [op. cit., p. 27), is made up, first, of treaties or quasi-treaiies such as the 
act of union, 1707, with Scotland and with Ireland in 1800 (these are "only the ad- 



ANGLO-AMERICAN AND FRENCH TYPES CONTRASTED 383 

in its legal nakedness, it would be unrecognizable and 
infeasible. The unwritten part deals with the organiza- 
tion, privileges, reciprocal relations, and interaction of the 
great public powers, crown, cabinet, and parliament. **A11 
those important matters," observes Boutmy, "which are 
the very center and soul of constitutional law are regulated 
in England by simple custom." The very name of the 
cabinet is unknown to the written law. The practice of 
annual sessions of Parliament, its division into two houses, 
the exclusive power of the House of Commons to initiate 
revenue bills, and many other matters of fundamental 
character are regulated wholly by custom. "In fact, the 
most important part of the political organization is just 
what is kept out of the written law and given over to the 
sole guardianship of custom." "The English" have, to Boutmy 
quote Boutmy further, "left the different parts of their English 
constitution where the waves of history have deposited po^sti- 

•' ^ tution 

them; they have not attempted to bring them together, to 
classify or complete them, or to make of it a consistent 
and coherent whole." ^ Many of the customs and usages 
which go to make up the constitution have, to be sure, 
been reduced to writing, and some of them have been 
embodied in fundamental statutes, but they have never 
been collected and incorporated in a single act. When 

denda to the constitution," " the external portion of it") ; second, customs, generally 
known as the common law, the lex non scripta — in reality they are embodied in 
documents such as judgments, reports, legal opinions, etc; third, compacts 
enacted like statutes; fourth, statutes dealing with such matters as legal rights 
and securities, religious liberty, press, electoral privileges. According to Dicey 
the English constitution consists of (i) treaties, (2) the common law, (3) solemn 
agreements, like the Bill of Rights, (4) statutes. "Law of the Constitution," 
p. 48. Again, says Dicey, " the English constitution is made up of two parts ; first, 
a body of rules, some written, others unwritten which the courts will take no notice 
of." The former he denominates collectively as the "law" of the constitution, the 
latter he styles "the conventions." For examples of each, see his "Law of the 
Constitution," pp. 24 ff. The English constitution. Dicey remarks, is a judge- 
made constitution, and bears on its face all the features good and bad of judge- 
made law. Ibid., 211. 
1 Ibid., p. 6. 



384 THE CONSTITUTION OF THE STATE 

it comes to constitution-making, the English have never 
shown the French taste for simplicity, logic, and uniform- 
ity. Indeed, they seem deliberately to have avoided as a 
dangerous experiment any attempts at unity, at laying 
down general principles, or at assimilation and fusion of the 
different parts of the constitution/ Those parts of the 
constitution which have been reduced to written form ema- 
nate from the same source, are enacted in the same way, 
have the same legal authority, and are repealed or amended 
Wo Dis- in the same way, as other statutes. There is, in short, no 
between Separation in England between the constituent power and 
the Con- the legislative power; both are consolidated in the Parlia- 
and Legis- ment, which is at once legislature and constituent assembly. 
Powers in There is no law, fundamental or otherwise, which it cannot 
England change.^ But while the constitution-making and the law- 
making powers are in the same hands, there is a growing 
feeling that fundamental and far-reaching changes ought 
not to be made except as a result of a general election at 
which the proposed changes are the issues — in short. 
Parliament ought to alter the constitution only in obedi- 
ence to a mandate from the electorate.^ 

Where the constituent and legislative powers are in the 
same hands, the distinction between a "constitutional" law 
and an ordinary statute cannot easily be determined. 
There is no exact juristic test, as in America, where con- 
stitutional provisions and statutory enactments proceed 
from different sources and are altered and repealed accord- 
ing to different processes. Whether a given act of the 
British Parliament, therefore, belongs to the category of 
constitutional law or that of ordinary statute law must 
depend, not on its source or manner of enactment, but 

' Compare Boutm)', p. 13. 

'See on this point Dicey, "Law of the Constitution," lect. II. The legaJ 
omnipotence of Parliament has already been fully discussed in the chapter or. 
sovereignty. 

* Compare Lowell, " Government of England," vol. I, p. 4. 



ANGLO-AMERICAN AND FRENCH TYPES CONTRASTED 385 

upon the character of the act itself. If it is fundamental 
in its nature, that is, if it relates to the distribution or 
exercise of the sovereign power of the state, it may be 
classed as constitutional, otherwise it falls within the do- 
main of ordinary statutory legislation. Obviously it is 
not always easy to draw the line between that which is 
fundamental and that which is not. We should have 
no difficulty, for example, in classifying as fundamental the 
great acts of Parliament known as Magna Charta, the Bill 
of Rights, the Habeas Corpus Act, the Petition of Right, the 
Act of Settlement, and possibly others; but we are not so 
certain as to such enactments as the Municipal Corporations 
Act of 1835, the suffrage and distribution acts of 1832, 1867, 
and 1884, and the local government acts of 1888 and 1894. ' 
In a technical sense De Tocqueville was correct, therefore, 
when he said the British constitution had no real existence.^ 
He meant by this that there were no laws in Great Britain No Legal 
that could be definitely marked off from other laws, as tionTn 
fundamental, that is, there was no exact test for differen- England 

... . . between 

tiatmg between a constitutional provision and a statute.^ a statute 

In America, where constitutional and statutory enactments ^fuUonai 

proceed from different sources and are altered and re- Enact- 
pealed according to different processes, there is no difficulty 
in distinguishing between that which is constitutional in 
character and that which is statutory. 

In this connection it should be observed that "consti- The Terms 

tutional" and "unconstitutional" have different meanings iJ^jon^ai'.. 

in England and America. In England a law is "consti- and"Un- 

tutional" because it is one which is supposed to affect the tionai" in 

fundamental institutions of the state and not because it ^°f^^^ 

arid 

proceeds from a different source, has any higher legal America 

* "Democracy in America." Trans, by Reeves, vol. I, p. 103. 

* This is the reason, says Bryce, why the British constitution has never been re- 
duced to the form of a statutory enactment. Moreover, since any part might be 
changed by Parliament as easily as any other, little or nothing would be gained by it. 
It might be done, however, as has been done in Belgium, whose constitution is mainly 
a written reproduction of the English constitution. 

POL. SCI. — 25 



386 



THE CONSTITUTION OF THE STATE 



The 
French 
Notion of 
a Consti- 
tution 



authority, or is more difficult to change than other laws. 
An act of Parliament is sometimes said to be "unconsti- 
tutional," not because it is inconsistent with some higher 
law, for there is no law superior in authority to a statute 
of Parliament, but because it is supposed to be contrary 
to the established usages and customs of the kingdom or 
the principles of morality, international law, or the law 
of nature. The distinction is not between a legal and 
illegal statute as in America, for no act of Parliament 
can be "unconstitutional" in the sense of being illegal. 
An act of Parliament, for example, making a man a judge 
in his own case, an act to tax the colonies, an act to 
deprive a man of his property without due process of law, 
would be "unconstitutional" only in the sense of being in 
violation of ancient and well-established customs and not 
because of any inconsistency with some higher written law. 
No court would question such an act or refuse to give effect 
to its provisions, however immoral or unjust it might seem. 
In the United States, a statute is said to be "unconstitu- 
tional," not because it is one which does not affect in a 
fundamental manner the organization of the state or its 
institutions, but because it is not in conformity with the 
provisions of a higher written law. In the absence of such 
conformity the statute is said to be "unconstitutional," 
which is another name in America for illegality; and the 
courts exercise the authority of pronouncing upon the ques- 
tion of consistency and refusing to give effect to the infe- 
rior law when it is in conflict with the higher law. 

We may contrast with the British constitution some of 
the earlier ones of France, which are the best representa- 
tives of the opposite theory that constitutions are made 
rather than evolved. The French idea of a constitution 
has been that of a written instrument, conceived and 
struck off at once, and capable of being fitted to the nation 
for which it is intended as a suit of clothes may be fitted 
to an individual. The French have never been impressed 



ANGLO-AMERICAN AND FRENCH TYPES CONTRASTED 387 

with the advantage of following in old paths, constitution- 
ally speaking, and of preserving continuity and connection 
with the past. They have oftentimes allowed themselves 
to be seduced by the fallacy that a nation may cut loose 
entirely from its past, and erect a new constitutional 
structure better adapted to the needs of the people than 
any which is the product of growth and evolution. The 
authors of the earlier French constitutions, observes 
Boutmy, were in the position of an architect about to 
erect a monument in the center of a public square; they 
must have a free and clear space at their disposal.^ They 
went on the principle that no fabric based on history can 
occupy fully the ground, and that in the midst of the site to 
be covered there should be permitted to stand no part of the 
old edifice which may hamper the arrangement and com- 
plicate the plan of the new constitution. The French also 
attach great importance to the constitution as a philo- 
sophical instrument and a work of art and of logic. Order 
and symmetry have been the soul of their creations; they 
have done the work of logicians, engineers, and artists. 
Principles with them also occupy a very important place. 
Everything must be deduced from a principle and every- 
thing must conform to a principle. Having broken with 
the past and set aside all precedents, every important prin- 
ciple must be stated afresh. "There is a maxim," says 
Boutmy, "which has remained true under all the successive 
regimes in France, viz. that all rights must be recorded in 
writing; that no right can come into existence without a 
document to attest it, or be annulled without express aboli- 
tion. There is no country where the feeling for customary 
law is more blunted than in France, or where the virtue of 
leaving things to be understood is less appreciated. Nor is 
there any country where there is a greater dislike to the 
idea of an equity {droit pretorien) which, while preserving 
the form, changes the substance, of written law."' 

* "Constitutional Studies," p. 167. ' Ibid., p. 168, 



388 



THE CONSTITUTION OF THE STATE 



Classifi- 
cation of 
Constitu- 
tions as 
Written 
and Un- 
written 



Written 
Constitu- 
tions con- 
tain an 
Unwritten 
Element 



IV. WRITTEN AND UNWRITTEN CONSTITUTIONS 

The classification of constitutions as written and unwritten 
has been criticised on the ground that the distinction be- 
tween them is really one of degree rather than of kind, and 
hence does not mark a contrast between widely differenti- 
ated types. In the first place, all written constitutions that 
have been in operation for any considerable period of time 
have in fact become overlaid with an unwritten element 
consisting of custom and judicial interpretation. Written 
constitutions, so called, Bryce remarks, become "devel- 
oped by interpretation, fringed with decisions, and enlarged 
by custom so that after a time the letter of their texts no 
longer conveys their full effect." ^ The quantity of this 
conventional element in any case depends largely upon the 
age of the constitution and the character of the civilization. 
Examples of written constitutions which have become sup- 
plemented and modified by a more or less extensive un- 
written element are those of the United States, Hungary, and 
Italy. Much of the constitution of the United States, 
particularly those parts relating to the election, succession, 
tenure, and powers of the President, the procedure and meth- 
ods of Congress, and the powers of the federal judiciary, has 
been modified in important particulars by the force of 
precedent, and expanded by judicial interpretation. We 
must take exception to the view of a well-known writer on 
American constitutional law, that the United States con- 
stitution "is peculiar in that it is all written, that it has 
nothing of tradition, that it is, indeed, in all respects, a 
statute of vast and solemn import enacted in the name of 
the people ... an expression of legislative will in a written 
form." ^ We do not, however, go quite to the length of an- 
other high authority in holding that the conventional ele- 
ment in the United States constitution is now quite as large 

'"Constitutions," p. 7. 

* McClain, "Constitutional Law of the United States," p. 11. 



WRITTEN AND UNWRITTEN CONSTITUTIONS 389 

as that in the English constitution/ but we deny that "it is 
all written " and has nothing of tradition or custom about it. 
It is true, of course, that the larger part of it is written, and 
that what is written is contained in a single document, but 
to hold that there is no conventional element intermixed 
with the written part is to close our eyes to some of the most 
obvious historical facts of our constitutional development.^ 
The same is true of the constitutions of Hungary and Italy, 
and to a less extent of all written constitutions that have be- 
come venerable with age. As regards the constitution of 
Hungary, in particular, so much custom has grown up 
around it that some writers do not hesitate to put it in 
the same class with the British constitution. 

Experience has demonstrated the impossibility of em- 
bodying all the principles of constitutional law in a written 
document. Even if it were possible to do so in the begin- 
ning, the constitution would soon become modified and 
expanded by growth and custom.^ The conventional 
element is, therefore, inevitable and it is certainly not to be 
condemned. The French writer De Maistre has asserted 
that what is most intrinsically constitutional and funda- 
mental never is or could be written without endangering 
the state. The weakness and fragility of any constitution, 
he asserts, are in direct proportion to the amount of the 
written element.* 

On the other hand, all so-called unwritten constitutions 
contain a very large written element. Much of what was 

* Wilson, "Congressional Government," p. 7. On this point, see also Bryce, 
" American Commonwealth," chs. 34-35. 

^Compare on this point Brownson ("The American Republic," p. 218), who 
remarks that the United States constitution is twofold, written and unwritten — 
the constitution of the government and the constitution of the people. The former 
is simply a law ordained by the nation or people instituting and organizing the gov- 
ernment ; the latter is the real or actual constitution of the people as a state or sover- 
eign community. The unwritten constitution is not made, but is born with the 
nation. 

' Compare Lowell, "Government of England," Introduction. 

* Quoted by Mulford in "The Nation," p. 144. 



390 



THE CONSTITUTION OF THE STATE 



Constitu- 
tions con 
tain a 
Written 
Element 



Unwritten formerly custom and usage has been reduced to writing, and 
this tendency increases with time. A large part of the 
British constitution, as Sir Henry Maine has pointed out, 
is already written, particularly those parts which relate 
to the powers of the crown, the House of Lords, the judicial 
power, much of that which refers to the House of Com- 
mons and its relation to the electoral body/ And much of 
that which has been written is only declaratory of what 
was already law by force of custom. The great acts of 
Parliament, such as Magna Charta, observes Freeman, were 
not enactments of anything new, but merely set forth in 
written form what was already unwritten law.^ It is true 
that the written element in the British constitution is 
smaller in quantity than the unwritten part, and that 
what is written is scattered through many documents bear- 
ing widely different dates; but it is nevertheless consider- 
able in quantity and important in quality. The British 
constitution, therefore, differs from those of the written type 
not merely because it contains many conventions, but 
rather because its conventions are more abundant and all- 
pervasive than the parts which are written.^ 

The classification, therefore, of constitutions as written 
and unwritten is not only confusing and unscientific, but it 
results in placing in the category of written constitutions 
some which contain a large element of custom and conven- 
tion, and in the category of unwritten constitutions others 
which to a large extent have been reduced to written form. 
Thus the constitutions of Hungary and Italy are both 
usually classified as written, when in reality they are so 
overlaid with custom and possess such a high degree of 
flexibility that they contain more elements of true resem- 
blance to the British constitution than they do to the 
constitution of the United States. 



* "Popular Government," p. 125. 

' "Growth of the English Constitution," pp. 56, 57. 

* Compare Lowell, " Government of England," vol. I, p. 9. 



WRITTEN AND UNWRITTEN CONSTITUTIONS 391 

It has been suggested that a more scientific and useful a sug- 
classification would be that of flexible and rigid constitu- cialsffi- 
tions, the test being the relation which the constitution cation: 
bears to the ordinary laws, rather than its source or mode and Rigid 
of enactment. Those which possess no higher legal au- 
thority than the ordinary laws and which may be altered 
in the same way as other laws, whether they are embodied 
in a single document or consist largely of conventions, 
should then be classified as flexible, movable, or elastic 
constitutions; while those which emanate from a different 
source, which legally stand over and above ordinary laws, 
and which are repealed or amended by different processes 
should be classed as rigid, stationary, or inelastic consti- 
tutions. The former, though they may be written, possess 
elasticity and may be altered with the same ease and facil- 
ity as other laws; the latter cannot be thus altered, because 
their lines are hard and fixed. In the first class would 
fall the constitutions of Great Britain, Hungary, Italy, and 
possibly those of Prussia and Spain, though all except the 
first mentioned are usually classed as written instruments. 
In the second class would fall probably all the other so- 
called written constitutions of the world. ^ 

Sir Henry Maine classified constitutions, first, as his- Historical 
torical or evolutionary, that is, those which have developed a^riori 
through the accumulation of experience; and, second, as Consti- 
a priori, or those "founded on speculative assumptions 
remote from experience." ^ The constitution of Great Brit- 
ain is, of course, the best example of the former, while the 

' Bryce suggests this classification as preferable to the older classification of con- 
stitutions as written and unwritten. See his Essay on " Flexible and Rigid Constitu- 
tions," p. II. It is worth noting, however, that the distinction between flexible and 
rigid constitutions is not sharp or clear, hardly more so than that between written 
and unwritten ones. The German and Austrian constitutions, for example, are 
probably as flexible as that of Great Britain, yet are classed as rigid because the 
procedure of amendment in each case is slightly different from that of ordinary 
legislation. 

^ "Popular Government," p. 172. 



392 THE CONSTITUTION OF THE STATE 

eighteenth century constitutions of France were typical 
illustrations of the latter type. Resembling somewhat the 
latter class are those denominated by Judge Jameson as 
"ideal" constitutions, or those "framed in the closets 
according to abstract ideas of moral perfection for imaginary 
commonwealths." ^ Such were the constitutions proposed 
by Plato, Sir Thomas More, John Locke, Lord Bacon, and 
Thomas Harrington. 

V. MERITS AND DEMERITS OF EACH TYPE 

Advan- Each of the two types of constitution described above 

Rfgid° has its elements of strength and of weakness. In favor of 
Consti- the enacted or written constitution are the advantages of 
certamty, denniteness, and stability. Its provisions being 
embodied in an instrument prepared ordinarily with great 
care and deliberation, the likelihood of uncertainty as to 
its meaning is obviously less than where its prescriptions 
consist of customs and usages. Such constitutions cannot 
be bent and twisted by the courts to mean what the de- 
mands of the moment may require, and hence the protection 
they afford and the rights they guarantee are apt to be more 
permanent and free from frequent and hasty change. 
The process of alteration being usually more difficult than 
is the case with ordinary laws, they are more stable and 
steady and free from the dangers of temporary popular 
passion. But the latter advantage often proves an ele- 
ment of weakness. Experience shows that the difficulty 
of amending rigid constitutions has often prevented the 
introduction of needed changes and thereby interfered 
with the healthful growth and progress of the state. Thus 
the temptation to violate such a constitution when it is 
outgrown and no longer suitable to existing conditions is 
powerfully accentuated. If, on the contrary, too easy 

'"Constitutional Conventions," p. 67. See also Wood," Government of the 
State," chs. 5-7, for a discussion of constitutions as constrictive and restrictive. 



MERITS AND DEMERITS OF EACH TYPE 393 

facility for producing amendments is provided, there is Disad- 
danger that constitutional changes may be made objects ^^*^ses 
of party struggle for party purposes, and changes will 
be forced into the written instrument before they have 
wrought themselves into the constitution of the nation/ 

In favor of the second group, that is, flexible constitutions, Advan- 
are the elements of elasticity and adaptability. Being al- piexiwie 
terable with the same ease and facility with which ordinary Consti- 
laws are changed, they are capable of being modified so as 
to make possible the adjustment of the constitution to new 
and changing conditions of the society. They insure a 
means of legal and orderly growth and development and 
are particularly adapted to the needs of a progressive state. 
This facility of alteration not only removes the temptation 
to disregard the constitution, but also affords a legal means 
of satisfying popular passion and of minimizing or prevent- 
ing revolutions by meeting them halfway. In the life of 
every people there are crises when inelasticity becomes a 
danger — when the constitution must either be altered or 
violated. A flexible constitution is capable of being twisted 
to meet great emergencies where a rigid constitution would 
break under such circumstances. As Bryce has aptly 
remarked, "they can be stretched or bent so as to meet 
emergencies without breaking their framework; and when 
the emergency has passed, they slip back into their old form 
like a tree whose outer branches have been pulled aside to 
let a vehicle pass."^ Such a constitution also recovers 
from shocks without injury where a written constitution 
would be injured past mending. No constitution which has 
not evolved from the history and experience of the people 
and been molded by the conventions of the national life 
can be completely adapted to the needs and thoughts of 

' On this point see Jameson, "Constitutional Conventions," sec. 78. On the 
advantages of written constitutions, see also Lieber, "Political Ethics," vol. I, 
PP- 338-339- 

" Essay on "Flexible and Rigid Constitutions," p. 22. 



394 THE CONSTITUTION OF THE STATE 

the people. Judge Cooley has well said that "of all 
the constitutions which may come into existence for the 
government of the people, the most excellent is obviously 
that which is the natural outgrowth of the national life, 
and which, having grown and expanded as the nation has 
matured, is likely at any particular time to express the 
prevailing sentiment regarding government and the ac- 
cepted principles of civil and political liberty."^ And the 
least valuable, he adds, is that which turns its back upon 
the national experience, dissevers the national future from 
the past, and lays the framework of the government in ideal 
perfection. 

One of the weaknesses of a written constitution is that 
it too often represents an attempt to compress into a 
single document the principles of the political life and 
growth of the nation for an indefinite period of time. 
It is like an attempt to fit a garment to an individual with- 
out taking into consideration his future growth and changes 
in size. Most written constitutions in the past have been 
framed without regard to one of the most important prin- 
ciples in the life of the state, namely, that of growth and 
expansion. Gladstone once observed that no greater ca- 
lamity could befall a people than to break utterly with 
their past. It was in this respect that the eighteenth 
century French constitutions proved unsuccessful. They 
were framed as if they were the starting point in the 
life of the state instead of a mere step, and as if they 
could be fitted to the nation as a strait-jacket to an indi- 
vidual. No historical constitution, says Maine, ever 
suffered their "ludicrous fate."^ A state with such a 
constitution, observes this noted scholar, "is at best in the 
disagreeable position of a British traveler whom a hos- 
pitable Chinese entertainer has constrained to eat a dinner 
with chopsticks." 

' "The Comparative Merits of Written and Prescriptive Constitutions," "Har- 
vard Law Review," vol. II, p. 356. * "Popular Government," p 175. 



MERITS AND DEMERITS OF EACH TYPE 395 

But flexible constitutions, like those of the rigid type, The 
have their elements of weakness. They are said to be ^g^g^'of 
unstable and with no guarantee of solidity and perma- Unwritten 
nence. They are, says Bryce, in a state of perpetual flux, tutions 
like the river of Heraclitus into which a man cannot step 
twice. They can be altered to meet the temporary fancies 
of the moment as an ordinary statute may, for they have 
no higher legal authority than other laws and are changed 
in no different manner. They have also been criticised as 
"the playthings of judicial tribunals" because in the "vast 
storehouse of literary matter out of which their provisions 
are to be gathered it is easy to find or not to find that which 
one will." ^ It is said also that they are unsuited to democ- 
racies, but have an affinity for aristocratic societies. The 
masses in a democracy are suspicious, if not hostile, to 
constitutional prescriptions which have not been formally 
enacted but which rest mainly upon custom and usage. 
There is a popular belief that unwritten constitutions allow 
a wider discretion to public officers than do those of the 
written type. The masses like, says Bryce, something 
plain, simple, and direct, and entertain a suspicion of the 
arcana imperii of which written constitutions are full.^ 

Judge Jameson, a high authority on the subject of consti- 
tutions, thus describes the relative merits of the two types 
which we have considered: "Considering the excellencies 
and defects of the two varieties of constitutions, it is not 
easy to strike a balance between them. For a community 
whose political training has been carried to a high degree of 
perfection, in my view, an unwritten constitution would, 

* Jameson, "Constitutional Conventions," sec. 77. 

^"Constitutions," p. 31. Bryce maintains that what he denominates as 
"flexible constitutions" are workable only under three conditions: first, su- 
premacy must remain in the hands of a politically educated and politically upright 
minority; second, the bulk of the people must be continuously and not fitfully 
interested in and familiar with politics; and third, though legally supreme, they 
must remain content, while prescribing certain general principles, to let the trained 
minority manage the details of the business of government. Ibid., p. 39. 



30 



THE CONSTITUTION OF THE STATE 



Spread of 
"Written 
Consti- 
tutions 



on the whole, be preferable. In that training two ele- 
ments would be of vital consequence to the safety of the 
system: first, an accurate understanding of their political 
rights and duties, general among the citizens; second, 
sleepless vigilance to detect violations of the constitution, 
and the utmost promptness and energy to resist and punish 
them. Without either of these elements, the usurpations 
of public functionaries must bring the system to speedy 
ruin. But for a community whose training has been im- 
perfect or which is subject to fits of political apathy alternat- 
ing with those of intense zeal for reform, a written constitu- 
tion is doubtless the better one. While less flexible to the 
pressure of the national will, and therefore liable in many of 
its provisions to become obsolete and oppressive, it is a 
formidable barrier against usurpation. Its provisions are 
so plain that he who transgresses them must generally do 
so intentionally, and that fact must be so apparent that 
usurpation would in most cases not be ventured upon, as 
likely to arouse a dangerous opposition. The superiority 
of such a constitution in the circumstances supposed fol- 
lows from the fact that immobility, with its train of 
possible evils, is less dangerous than movement that is 
ill-judged or unconstitutional."^ 

Whatever may be the merits and demerits of written and 
unwritten constitutions, it is clear that the popular prefer- 
ence is for the former. Strictly speaking, the British consti- 
tution is the only remaining example of the latter class. 
One after another of the states of Europe have followed 
America and adopted the written type, while Japan, Aus- 
tralia, Persia, Liberia, South Africa, and other countries 
outside of Europe and America have done likewise; and 
no state which has once tried the written constitution has 
ever returned to the unwritten type. 



' "Constitutional Conventions," sec. 78. 



ESSENTIALS OF A WRITTEN CONSTITUTION 397 



VI. ESSENTIALS OF A WRITTEN CONSTITUTION 

In its structure and content a written constitution differs constitu- 
in important particulars from a statute. It expresses the sta^utes^ 
highest will of the sovereign and is or should be made up of Compared 
very general prescriptions dealing with such matters as the 
structural organization of the government, the distribution 
of its powers among different organs, the mode and princi- 
ples of its operation, the limitations upon its authority, the 
apparatus of checks and balances and the process by which 
the constitution itself may be altered. It is sometimes 
called the fundamental or organic law because it deals, or is 
supposed to deal, only with matters of a permanent and 
general character.^ It is also frequently spoken of as the 
supreme or paramount law because it usually, though not 
always, possesses a higher legal authority and overrides all 
conflicting provisions of statute law. Statutory law is 
of secondary rather than of primary importance and deals 
with matters which have more of a temporary than a 
permanent character. A typical written constitution con- 
tains three sets of provisions: first, a series of prescriptions 
setting forth the fundamental, civil, and political rights of 
the citizens, and imposing certain limitations on the power 
of the government as a means of securing the enjoyment of 
those rights; second, a series of provisions outlining the 
organization of the government, enumerating its powers, 
laying down certain rules relative to its administration 
and defining the electorate; and, third, a provision or pro- 
visions pointing out the mode of procedure in accordance 
with which formal changes in the fundamental law may be 

^ " A written constitution," observes Borgeaud, " is essentially a law of political 
protection, a law of guarantees, guaranteeing the people against the government and 
the minority against the majority. It declares the rights of the citizens, determines 
the organization of different branches of government and their relations to each 
other, and in many cases makes certain and special provisions rendered necessary by 
peculiar political conditions." "Adoption and Amendment of Constitutions," 
p. 38. 



398 TKE CONSTITUTION OF THE STATE 

Essential brought about/ The first group of provisions collectively 
Provisions j^^yg been called by one writer the constitution of liberty ; 
the second, the constitution of government ; and the 
third, the constitution of sovereignty? The first group is 
Bills of commonly styled in republican states a "bill of rights" or 
^^^*^ "declaration of rights." The people of the United States 
have always attached great importance to these declara- 
tions and have considered them a necessary part of their 
constitutions.^ Since 1780 every constitution adopted in 
the United States, with four exceptions, has given a promi- 
nent place to such declarations.^ In France, likewise, for a 
time after the Revolution, declarations of principles were 
considered a most essential part of their instruments of 
government. The constitutions of 1791, 1793, 1795, ^^d 
to a less extent that of 1848, contained not only elaborate 
declarations of the rights of the individual, but also numer- 
ous philosophical enunciations of the political doctrines 
and theories of the time.^ The American declarations of 

^ Compare Moore, "Commonwealth of Australia," p. 75. 

^ Burgess, "Political Science and Constitutional Law," vol. I, p. 137. 

' The absence of such a group of provisions in the national constitution formed, 
as is well known, one of the chief objections to the ratification of that instru- 
ment when it was submitted to the people of the states, though inasmuch as the 
national government is one of specifically enumerated powers, it would seem that 
the objection was without foundation. The first ten amendments adopted in 
1 791 removed the cause of the objection. 

* The exceptions were the constitutions of Louisiana, 1812, 1845, 1852, and 
1864, though in each there were a few scattering provisions in the nature of 
declarations relating to the rights of the individual. These declarations were 
originally intended to protect the people against arbitrary executive power, and 
since there is no longer any danger from this quarter, it has seemed strange to 
some foreign writers that they should continue to be repeated and multiplied in our 
constitutions. To such persons the reason appears to be simply the fondness of 
Americans for enumerating the maxims of political freedom and the principles of 
government. But if the danger from executive aggression has disappeared, that 
from legislative interference has greatly increased, and it is largely against this 
danger that the modern declarations are directed. 

' For the texts of these declarations see Anderson's "Constitutions and Docu- 
ments of France," pp. 58, 170, 212. The French constitutions of 1799, 1804, 1814, 
1820, and 1852 contained no declarations in favor of the rights of man, nor does 
the present constitution of the French Republic. 



ESSENTIALS OF A WRITTEN CONSTITUTION 399 

rights, says Bryce, are historically the most Interesting 
part of the constitutions, being as they are "the legitimate 
child and representative of Magna Charta and the English 
Bill of Rights."^ 

The second group of provisions, as has been said, relate provisions 
to the organization of the government in its widest sense, !^^^^^ *° 
including the distribution of powers among the several ization of 
departments, the organization of the particular agencies ermnent 
through which the state manifests itself, the extent and 
duration of their authority, the modes of appointment or 
election of public functionaries, and the constitution of 
the electorate. In some constitutions the provisions of 
this character are few in number and very general In 
character. The "constitutional" laws of France, for 
example, contain no provisions governing the compo- 
sition, mode of election, tenure, organization, or powers 
of the Chamber of Deputies, except the solitary provision 
that the Chamber shall be chosen by an electorate con- 
stituted on the basis of universal suffrage. 

The constitution of the United States is in respect to 
its content and scope the model of written constitutions. 
Its provisions in regard to the frame of government are 
general in character, yet sufficiently detailed to embrace 
those matters which may be considered as essential and fun- 
damental. It provides for the distribution of the powers 
of government between the legislative, executive, and judi- 
cial departments and the organization in a general way of 
each of the departments; it gives a brief and logical state- 
ment of their jurisdiction and powers; and a list of prohi- 
bitions upon both the national and state governments. It 
contains remarkably few miscellaneous provisions. There 
is nothing, or very little, relating to trade. Industry, banks, 
and other corporations, railroads, schools, or the army or 

* "The American Commonwealth," ch. 36. For further discussion of this sub- 
ject see Sherger, "The Evolution of Modern Liberty," pts. III-IV, and Jellinek, 
" Declaration of the Rights of Man and the Citizen " (Eng. trans.). 



400 THE CONSTITUTION OF THE STATE 

the navy. Altogether it is a model of brevity, of logical 
and scientific arrangement, and of conciseness of state- 
ment; and it is worth noting that the language in which 
it is cast is remarkably free from redundant and ambigu- 
ous phrases. It deals only with matters which are funda- 
mental, leaving those of a temporary or secondary interest 
to be regulated by statute. It is in truth the organic or 
fundamental law of the land. 
The But it is the constitutions of the individual states of 

stTt^e Con- ^'^^ American federal union that violate most the canons 
stitutions laid dowu above in regard to the proper conception of the 
content and scope of the fundamental law. The first of 
these instruments of government, notably those adopted 
before the close of the eighteenth century, were remark- 
ably brief and general in character. But those of each 
generation have grown in volume until some of those more 
recently adopted contain not only the fundamental public 
law, but a great deal that is not fundamental as well as a 
considerable amount of parliamentary law and ordinar^'^ 
private law.^ Recently there has been a marked dis- 
position to set forth by way of enumeration the powers 
which may be exercised by the legislature and to describe 
the manner under which those powers shall be exercised; 

' The Virginia constitution, for example, has grown from a document of a few 
pages to one of seventy-five ; from an instrument of about fifteen hundred words to 
one of more than thirty thousand. The present constitution of Alabama contains 
about thirty-three thousand words; that of Louisiana, about forty-five thousand; 
that of Oklahoma, about fifty thousand. The Virginia constitution contains a lengthy 
article on the organization of counties ; one on the government of cities, constituting 
a code almost as elaborate as a municipal corporations act ; one on agriculture and 
immigration; one on corporations, containing fourteen sections; one on taxation 
and finance; etc. The constitution of Oklahoma contains an article of seven 
sections on federal relations, one of which deals with the liquor traffic; elaborate 
provisions regarding the referendum and the initiative; a section describing the 
seal of the state; a detailed enumeration of those who are permitted to accept rail- 
road passes; an article on insurance; one on manufactures and commerce; and 
one on alien and corporate ownership of lands. It enumerates the powers of the 
legislature with so much detail that one almost wonders whether the legislature is 
not an authority of delegated rather than of residuary powers. 



ESSENTIALS OF A WRITTEN CONSTITUTION 401 

to multiply the prohibitions on the powers of the legis- 
lature; and to particularize with detail regarding the du- 
ties of public officers. 

The result of all this has been to change fundamentally Changed 
the character of the American state constitutions. From of^^**^*" 
instruments of fundamental public law they have become state Con- 
largely codes of ordinary statute law. The reason is two- 
fold : In the first place, the change is due to the growth of a 
strong popular distrust of the legislature on account of fre- 
quent abuses of its authority in the past. The remedy for 
this has been sought in the imposition of constitutional 
restrictions on its power and the regulation through consti- 
tutional provisions of many matters which have hitherto 
been left to legislative control. In the second place, the 
rapidly changing economic and social conditions of the 
present day have produced a very complex society, giving 
rise to many new subjects, requiring constitutional regu- 
lation, that were unknown a hundred years ago. The 
growth of great cities, with the complex political, social, 
and economic problems to which urban life has given rise; 
the conditions of the modern industrial system; the growth 
of industrial combinations and great aggregations of cap- 
ital; the development of new agencies of transportation 
and commerce, especially the railway and the telegraph, — 
have all given rise to conditions and problems of such deep 
and general interest as to create a demand for their regu- 
lation by constitutional provision rather than by ordinary 
statutory legislation. Moreover, the proper solution of 
the problems arising from the complexity of modern so- 
ciety requires more wisdom and knowledge than is usually 
found in legislative bodies, whose members are sometimes 
not only incompetent, but venal. The demand, therefore, 
for legislation through a constitutional convention is, as 
has been said, really a demand for legislation of a higher 
grade.^ To the legislature, in consequence, is left little 

' Compare Dealey, "Our State Constitutions," p. i. 
POL. SCI. — 26 



402 THE CONSTITUTION OF THE STATE 

more than the power of filling up the details of the con- 
stitution and of regulating matters of minor importance. 
But the result has been to destroy to a large extent the 
distinction between the constitution and ordinary statutory 
legislation. 

VII. DEVELOPMENT AND EXPANSION OF THE 
CONSTITUTION 

It is an old saying, attributed both to Sir James Mcin- 
tosh and Sir Henry Maine, that constitutions grow, in- 
stead of being made. Whatever may be the amount of 
truth contained in the saying, it is undeniably true that 
no existing constitution has reached its final form and 
become as it were a dead or fixed thing incapable of further 
development. Time and habit, said President Washing- 
ton, in his farewell address, are at least as necessary to fix 
the true character of governments as of other human in- 
stitutions. "Constitutions must grow," observed Lord 
Brougham, "if they are of any value; they have roots, 
they ripen, they endure." "Those that are fashioned," 
he continued, "resemble painted sticks, planted in the 
ground, as I have seen in other countries what are called 
trees of liberty. They strike no root, bear no fruit, swiftly 
decay, and ere long perish." ^ 
How Con- Written constitutions grow in three ways : by usage, by 
Grow°°^ judicial interpretation, and by formal amendment. The 
part played by custom and usage in the development of a 
constitution depends upon a variety of circumstances. It 
is more potent in the case of old than with new constitu- 
tions. It also plays a more important role in old and well- 
settled societies, where the inhabitants have greater ven- 
eration for the past and a higher regard for precedent 
than those of newer societies have.^ ' 

' "The British Constitution," Works, vol. XI, p. xxi. 
* Compare Bryce, "American Commonwealth," ch. 32. 



DEVELOPMENT OF THE CONSTITUTION 403 

In the newer states of America, where constitutions are 
often revised or made over entirely at least once in every 
generation, development by usage is inconsiderable. The 
constitution of the United States, however, the oldest 
existing American constitution except that of Massachu- 
setts, has developed and expanded in many directions 
through the operation of custom and usage. Many ex- 
amples might be given if it were necessary. In all states 
the laying down of new rules and the inauguration of new 
practices tend to create a, body of customary law which 
supplements and often modifies to some extent the actual 
working of the law as embodied in the written constitu- 
tion. A constitution so free of detail and so concise of 
statement as that of the United States must necessarily 
be supplemented by legislation, judicial interpretation, 
or usage. Without understandings and conventions it 
would in fact be unworkable. 

The development of a written constitution by judicial Expan- 
interpretation necessarily results from the ambiguities of juSdi 
language and the deficiencies of expression which abound interpre- 
in the most carefully framed instrument, from the appear- 
ance of new circumstances and conditions, and finally from 
the inevitable difference of opinion which arises concerning 
the meaning of its provisions. Under such circumstances 
nothing is more natural than for the judiciary to assume 
the responsibility of ascertaining not only the true meaning 
of that which is expressed in the constitution but also that 
which the framers intended to express; and to draw conclu- 
sions respecting its applicability to subjects which lie beyond 
the direct expressions of the text and which the framers 
would have dealt with had they been gifted with the power 
of foresight.^ Expansion by interpretation is especially 

'The former act is known as "interpretation," the latter as "construction." 
See Cooley, "Constitutional Limitations," ch. 4; Bouvier's "Law Dictionary," sub 
verba "Interpretation" and "Construction"; and Lieber "Practical and Legal 
Hermeneutics," ch. III. 



404 THE CONSTITUTION OF THE STATE 

potent in countries like the United States, where the judi- 
ciary plays an exceptionally important role, possessing as 
it does not only the power to interpret the meaning of the 
provisions of the constitution, but also to declare statutes 
which are in conflict with the supreme law to be of no 
force and effect. It is almost a commonplace to say that 
a very large part of the constitution of the United States 
consists of judicial addenda. Almost every clause has 
been the subject of interpretation and construction; and 
if we were to strip it of the meanings that have been added 
by the courts during its existence of more than a century, 
we should hardly be able to recognize it. 
Expan- The most prolific source of constitutional expansion, 

Form^ particularly in republican states, is, of course, formal 
Amend- amendment of the written instrument in accordance with 
the method of procedure set forth in the fundamental law 
itself for making changes in its provisions. As has been 
said, provision for its own alteration has come to be re- 
garded as an essential part of every written constitution. 
Some of the early American state constitutions (eight of 
them altogether and all belonging to the eighteenth cen- 
tury) contained no such provisions.^ Whether this omis- 
sion was due to oversight, or failure to appreciate the ob- 
vious advantages of expressly pointing out in the constitu- 
tion itself the mode of procedure to be observed in altering 
its provisions; or whether it was due to the prevailing 
opinion, repeatedly asserted in their bills of rights, that 
the people have an inalienable right at all times to amend 
their constitutions and hence no necessity exists for limit- 
ing their right by self-imposed restrictions, — there is a dif- 
ference of opinion. Whatever may have been the reason, 
the desirability, not to say necessity, of pointing out in the 
constitution a method of legal and orderly procedure for 

* For a detailed consideration of the methods of amending the American state 
constitutions, see an article by the writer entitled "The Amendment of State Constitu- 
tions," in the "American Political Science Review," vol. I, no. 2. 



DEVELOPMENT OF THE CONSTITUTION 405 

making alterations soon came to be appreciated ; and all 
the American state constitutions framed since the begin- 
ning of the nineteenth century, with three exceptions, have 
contained amending provisions.* No written constitution 
is complete without such a provision. In some respects it is 
the most important part of the constitution, because, as has 
been said, upon the correspondence of the written constitu- 
tion with the real and natural conditions of the state depends 
the question whether it shall develop with peaceable conti- 
nuity or shall suffer alternations of stagnation, retrogression, 
and revolution.^ John Stuart Mill has well observed that no 
constitution can expect to be permanent unless it guar- 
antees progress as well as order. ^ Human societies grow 
and develop with the lapse of time, and unless provision 
is made for such constitutional readjustments as their 
internal development requires, they must stagnate or 
retrogress. In short, the written law must correspond with 
the economic, political, and social conditions of society. 
An unamendable constitution, says Mulford, is the "worst 
tyranny of time, or rather the very tyranny of time. It 
makes an earthly providence of a convention which has 
adjourned without day. It places the scepter over a 
free people in the hands of dead men and the only office 
left to the people is to build thrones out of the stones of 
their sepulchres." * The provision for amendment should 
be neither so rigid as to make needed changes practically 
impossible nor so flexible as to encourage frequent and 
unnecessary change and thereby lower the authority of 

' The exceptions were those of Virginia, of 1830, 1851, and 1864. 

^ Cf. Burgess, "Political Science and Constitutional Law," vol. I, p. 137. 

^ "Representative Government," p. 8. 

* "The Nation," p. 155. "To make amendment difficult or well-nigh impossi- 
ble," continues Mulford, "and then to assume that it shall be exclusively and 
exhaustively definitive of the action of the people in all events, involves the 
denial of the organic and moral being of the people. ... It is directly immoral, 
since in its necessary inference the people no longer exists as a power in the 
moral order which is the life of history." 



4o6 



THE CONSTITUTION OF THE STATE 



The 
Nature 
of the 
Amend- 
ing Power 



the constitution by reducing it practically to the level 
of an ordinary statute. The machinery of amendment, 
remarks Judge Jameson, should be like a safety valve, 
so devised as neither to operate the machine with too great 
facility nor require, in order to set it in motion, an accu- 
mulation of force sufficient to explode it. In arranging it, 
due consideration should be given on the one hand to the 
requisites of growth and on the other hand to those of con- 
servatism. " The letter of the constitution must neither 
be idolized as a sacred instrument with that mistaken 
conservatism which clings to its own worn-out garments 
until the body is ready to perish from cold, nor yet ought 
it to be made a plaything of politicians, to be tampered 
with and degraded to the level of an ordinary statute." * 



* "Constitutional Conventions," p. 549. 



CHAPTER XIII 

THE DISTRIBUTION OF THE POWERS OF 
GOVERNMENT 

Suggested Readings : Aucoc, " Droit administratif ," pt. I, bk. I, 
ch. i; Bagehot, "The English Constitution," ch. 2; Berthelemy, 
"Traite elementaire de Droit administratif," pp. 11-32; also his 
"Role du Pouvoir executif dans les Republiques modemes," pp. 51- 
57; Bluntschli, "Allgemeine Staatslehre," bk. VII, chs. 6 and 7; 
BoNDY, "Separation of Governmental Powers" in the "Columbia 
University Studies in History, Economics, and Public Law," vol. V, 
chs. 1-7; Crane and Moses, "Politics," ch. 15; Ducrocq, "Cours 
de Droit administratif," vol. I, pp. 6-50; DuGUiT, "La Separation 
des Pouvoirs"; also his "Droit constitutionnel," sees. 54 and 55; 
EsMEiN, "Droit constitutionnel," tit II, ch. 3; "The Federalist," 
Nos. 47, 48, 49; GooDNOW, "Principles of Administrative Law," 
bk. I, chs. 1-4; Jellinek, "Recht des modernen Staates," pp. 591- 
609; Laveleye, "Le Gouvernement dans la Democratie," vol. I, 
bk. VII, ch. i; Locke, "Two Treatises of Government," sees. 
143-148, 156, 159; Mill, "Representative Government," ch. 5; 
Montesquieu, "Esprit des Lois," bk. XI, ch. 6; Moreau, "Precis 
elementaire de Droit constitutionnel," pp. 18-26; Pradier-Fodere, 
"Precis de Droit administratif," pt. I., ch. i; St. Girons, "La 
Separation des Pouvoirs, " bk. I ch. i ; Schouler, " Ideals of the 
Republic," ch. 9; Sidgwick "Elements of Politics," chs. 22, 24; 
Story, "Commentaries," vol. I, bk. Ill, ch. 7. 

I. THE THEORY OF THE SEPARATION OF POWERS 

The functions or activities of government are custom- The 
arily divided into three classes: those which are legislative Theory 
in character, those which are executive, and those which 
are judicial. The legislative function consists mainly in 
laying down rules of conduct for those subject to the juris- 
diction of the state; the executive function consists mainly, 
though not wholly, in enforcing such of these rules as are 
in the nature of commands; and the judicial function con- 

407 



Theory 



408 DISTRIBUTION OF POWERS OF GOVERNMENT 

sists in Interpreting their meaning in order that they may 
be applied in particular cases. 

Some writers, however, especially among the French, 
recognize only two classes or groups of governmental 
powers, namely, those which are concerned with the formu- 
lation and expression of the will of the state, and those 
which have to do with the execution of that will. Thus, 
says Du Crocq, an eminent writer on administrative law, 
"the mind can conceive of but two powers: that which 
makes the law and that which executes; there is no place 
for a third power by the side of the other two." ^ 
Duality Thosc wlio adopt this view maintain that the judicial 

function does not in reality constitute a separate and dis- 
tinct power, but is rather a part of the executive power, or 
a particular phase or incident of it, since it is primarily 
concerned with the application and enforcement of the leg- 
islative will. Thus writes Duguit, another French oppo- 
nent of the trinity theory, "It necessarily follows that the 
judicial order is not a distinct power, but simply a depend- 
ency of the executive power, under whose surveillance it 
ought to be placed ; ... it is a mere agent of execution, 
subordinate to the executive power." ^ Consequently, 
what are popularly treated as three clearly differentiated 
sets of governmental functions are in fact but two, namely, 
those which are legislative and those which are executive.' 

^ "Traite de Droit administratif," vol. I, p. 29; see also his "Cours de Droit 
administratif," vol. I, p. 26. 

^ " La Separation des Pouvoirs," pp. 73-74. See also his " Droit constitutionnel," 
pp. 319, 334, where he declares that there are but two powers of government: la 
puissance legislative el la puissance executive. Duguit argues that if the judicial 
power is distinct, autonomous, and independent of the executive power, the right of 
pardon by the executive is evidence. In short, the existence of the right of 
pardon in the executive is a recognition of the dependence of the judicial power upon 
that of the executive. 

^This is also the view of Pradier-Fodere ("Precis de Droit administratif," ch. 
I), who asserts that "there can be but two powers of government, that which ad- 
ministers (legislative) and that which applies (executive)." See also Rousseau, 
" Contrat social," bk. Ill, ch. 7; alsoTreitschke ("Politik," vol. II, pp. 2-3), who 



THE THEORY OF THE SEPARATION OF POWERS 409 

Generally the advocates of the "duality" theory sub- Separa- 
divide the activities which have to do with the execution po°°/gi 
of the state will into three classes: those which are purely France 
executive in character, or which are limited to the super- 
vision and direction of the task of execution; those which 
are administrative in character, or which are concerned 
rather with the actual scientific or technical work in- 
volved in carrying on the executive functions of govern- 
ment; and those which are judicial, or which have to do 
with the interpretation and application of the law to 
concrete cases/ Finally, it should be noted that while 
most French writers conceive the judicial power to be a 
particular phase or manifestation of the executive power, 
they nevertheless separate rigidly the function of admin- 
istration, in the executive sense of the term, from judicial 
administration, or the administration of justice, by taking 
away from the judiciary practically all power of control 
over the administrative authorities. In other words, the 
doctrine of the separation of powers, as Dicey remarks, has 
in the mind of a French statesman a meaning very dif- 
ferent from that attributed to it by a statesman in England 
or the United States. In France it means not merely that 

asserts that the " whole theory regarding the existence of three state powers and 
their separation from each other is a pure theoretical and fantastical conception." 
"It is better," he adds, "to recognize only two such powers: Ver/assung, "which. 
embodies the totality of activities which have to do with the expression of the will 
of the state; and Verwaltung, which includes all those concerned with the execution 
of the state will." Compare also Goodnow ("Politics and Administration," espe- 
cially chs. I and 2), who supports the French theory of the duality of governmental 
powers. All the powers of the state, he observes, have to do either with the ex- 
pression of the will of the state or the execution of that will. Those activities which 
belong to the former class may be appropriately comprehended under the name 
"politics," while those belonging to the second category may be embraced under 
the term "administration." "Politics" and "administration," therefore, include 
all the activities of the state, whether we describe them as legislative, executive, 
judicial, administrative, or otherwise. See also St. Girons, "La Separation des 
Pouvoirs," pp. 1-3; also pp. 135 and 411. 

' Compare Goodnow, "Principles of Administrative Law," p. 17; and Jellinek, 
"Recht des mod. Staatcs," bk. Ill, ch. 18, sec. 2. 



4IO DISTRIBUTION OF POWERS OF GOVERNMENT 

the judges should be independent as understood in the 
United States, but that the government and its agents 
ought to be independent of, and to a great extent free 
from, the jurisdiction of the ordinary courts.^ 
Criticism While the "duality" theory is accepted by most French 
°i)*uaiity" writers, there are a few of high standing who reject it as 
Theory unsouud. Esmciu, for example, asserts that the function 
of the judges in the application of the law is not simply an 
incident of execution and hence is not subordinate to the 
executive power. It is true, he admits, that the function 
of interpretation by the judiciary is preliminary to that 
of execution; that is, the judges determine in the first 
place whether the law is applicable, and, therefore, whether 
it ought or ought not to be enforced in a particular case; but 
that does not make it a part of the act of execution. If the 
judicial power is only an incident of the executive power, 
then the judges are nothing more than the agents of the 
executive and render justice in its name. Moreover, since 
the exercise of judicial power in many cases has no bear- 
ing whatever on the execution of the law, how can it be a 
part or phase of the executive power in such cases ? In 
the field of non-contentious jurisdiction, where no con- 
troversies are involved, there is no question of the execu- 
tion of the law, and it would manifestly be incorrect to 
speak of the judicial power as having any agency in the 
function of execution.^ But although much may be said in 
favor of the duality theory, popular usage and actual prac- 
tice sanction the doctrine of the trinity of powers. In 
every modern state, whatever the form of its constitution, 
the governmental system is in fact organized and admin- 
istered on the principle that the judicial power is not a 
part of the executive power, that it is fundamentally dif- 
ferent in character, and that its exercise should be in- 

' " Law of the Constitution," p. i8i. 

-"Droit constitutionnel," pp. 337-351. For further discussion of this question 
see Berthelemy, op. cit., pp. 13-14. 



THE THEORY OF THE SEPARATION OF POWERS 411 

trusted to separate and distinct organs. Even in absolute 
monarchies where, constitutionally, the whole legislative 
and judicial power is in the hands of a single individual, 
it is in practice separated and exercised through agencies 
largely distinct and independent of each other. 

The idea of a threefold division of governmental powers Ancient 
was recognized by Aristotle, Cicero, Polybius, and other tion°f°t'he 
ancient political writers.^ Aristotle, for example, classi- Trinity 
fied the powers of government as: first, the deliberative, 
or those concerned with great questions of practical policy, 
including decisions regarding war and peace, the negotia- 
tion of treaties, the making of laws, etc; second, the magis- 
terial, or those corresponding roughly to the executive 
functions of a modern state; and, third, the judicial power .^ 
Although the ancient writers distinguished between three 
classes of governmental powers, corresponding roughly to 
the modern classification, yet in practice the distinction 
was not always observed. Thus the Ecclesia of Athens 
passed the laws, executed many of them, and exercised 
judicial functions. The Archons, although primarily ad- 
ministrative officials, possessed judicial powers. The Ro- 
man Senate was both a legislative and an administrative 
assembly, while the magistrates combined both admin- 
istrative and judicial functions.^ Throughout the Middle 
Ages no clear distinction between legislative, executive, and 
judicial functions was recognized, though in a rough way 
the functions, especially of legislation and administration, 

'Compare, on this point, Bluntschli, "Allgemeine Staatslehre," bk. VII, ch. 6; 
Laveleye, "Le Gouvernement dans la Democratic," vol. I, bk. VII, ch. i; St. 
Girons, "La Separation des Pouvoirs," pp. 4-29, where the theory and practice are 
reviewed at length ; and Bondy, " The Separation of Governmental Powers," " Co- 
lumbia University Studies in History, Economics, and Public Law," vol. V, p. 144. 

* "Politics," bk. IV, ch. 14. 

* Sidgwick observes that in the earliest times political functions were distributed 
among three differently constituted organs: the king or supreme chief, a coun- 
cil of subordinate chiefs or elders, and the assembly of fully qualified citizens. 
" Development of European Polity," p. 43. 



412 DISTRIBUTION OF POWERS OF GOVERNMENT 

were separated as a matter of convenience. Generally, 
the same magistrates exercised both executive and judi- 
cial functions. Indeed, the separation of the judicial 
power from the executive is a comparatively recent inno- 
vation, and when it came it undoubtedly marked an im- 
portant political advance. The purity of justice and the 
liberty of the citizens, observes Bluntschli, gained by the 
change, and government did not lose its security.^ 
Develop- The distinction is so familiar to us, says Maine, that 
the'prin- ^^ ^^ hard for us to believe that even the different nature 
cipieofthe of the cxccutivc and legislative powers was not recognized 
of Powers until the fourteenth century, when it appeared in the 
"Defensor Pacis" of Marsiglio of Padua (1377)-^ Bodin, 
in the sixteenth century, was the first political writer to call 
attention to the danger of allowing the prince to admin- 
ister justice in person and to point out the advantage of 
intrusting the judicial power to independent magistrates. 
"To be at once legislator and judge," he declared, "is to 
mingle together justice and the prerogative of mercy, 
adherence to the law and departure from it.^ Writers on 
the law of nature and of nations had analyzed the nature 
of the various powers of government, but had generally held 
that in order that the state might be strong and powerful 
it was necessary that all powers should be united in the 
same hands rather than distributed among coordinate 
and coequal authorities. In England, at the time of the 
Puritan Revolution, in the middle of the seventeenth cen- 
tury, the division of governmental powers and their exercise 
by separate and distinct organs became for the first time a 
political doctrine. Cromwell, in the constitution of the 
Protectorate, went to the length of separating the execu- 
tive and legislative functions, but he did not fully recog- 
nize the independence of the judiciary. John Locke, the 
political philosopher of the English Revolution, in his 

' " Allgemeine Staatslehre," vol. I, bk. VII, ch. 7. 

* " Popular Government," p. 219. ^ " De la R^publique," bk. I, ch. 10. 



THE THEORY OF THE SEPARATION OF POWERS 413 

famous "Two Treatises of Government," declared that the 
powers of government naturally divided themselves into 
those which were legislative in character, those which 
were executive, and those which were federative/ By the 
latter functions he seems to have meant what is now un- 
derstood as the diplomatic power. 

The first modern political writer to dwell at length upon view of 
the separation of the powers of government and to treat ^o'^t^s- 
it as a fundamental principle of political science was 
Montesquieu, in his famous work entitled "L'Esprit des 
Lois," published in 1748. "In every government," he 
said, "there are three sorts of power": the legislative, the 
executive, and the judiciary. When the legislative and 
executive powers are united in the same person, or in 
some body of magistrates, there can be no liberty. Again, 
there is no liberty if the judiciary power is not separated 
from the legislative and executive powers. Were it 
joined with the legislative power, the life and liberty 
of the subject would be exposed to arbitrary control; for 
the judge would then be the legislator. Were it joined 
with the executive power, the judge might behave with 
violence and oppression. There would be an end of 
everything were the same man or the same body, whether 
of the nobles or of the people, to exercise these three 
powers, that of enacting the laws, that of executing the 
public resolutions, and that of trying the causes of indi- 
viduals.^ Montesquieu was the first writer, therefore, 
to make the theory of the separation of powers a doc- 
trine of liberty. His views became a part of the political 
philosophy of the French Revolution and were fully enun- 
ciated in the constitutions which were framed in France 
before the close of the eighteenth century.^ 

' Ch. XII, sees. 143, 144, 146 (Morley's ed.). 
» "Esprit des Lois," bk. XI, ch. 6. 

^ See, for example, the constitutions of 1791 and 179.5. Article 16 of the 
Declaration of Rights of 1791 asserts that "every society in which the separation 



414 DISTRIBUTION OF POWERS OF GOVERNMENT 



View of 
Black- 
stone 



Views of 
the Found- 
ers of the 
American 
Republic 



In England essentially the same doctrine as that an- 
nounced in France by Montesquieu was laid down by Black- 
stone in his "Commentaries on the Laws of England." ^ 
"Whenever," said Blackstone, "the right of making and 
enforcing the law is vested in the same man or the same 
body of men, there can be no public liberty. The magis- 
trate may enact tyrannical laws and enact them in a tyran- 
nical manner, since he is possessed, in his quality of 
dispenser of justice, with all the power which he as legis- 
lator thinks proper to give himself." "Were the judicial 
power joined with the legislative," he concluded, "the life, 
liberty, and property of the subject would be in the hands 
of arbitrary judges whose decisions would be regulated by 
their opinions and not by any fundamental principles of 
law; which, though legislators may depart from, yet 
judges are bound to observe. Were it joined with the ex- 
ecutive, this union might soon be an overbalance of the 
legislative." 

In America, at the time of the framing of the national 
constitution, the influence of both Blackstone and Montes- 
quieu was powerful and decisive, and their doctrines con- 

of powers is not determined has no constitution." In pursuance of this theory the 
constitution of 1791 created a legislative assembly not subject to dissolution by the 
executive ; a ministry which was excluded from seats in the legislature ; a king with 
no legislative initiative and with only a suspensive veto ; and a judiciary elected by the 
people. The administrative authorities were freed from all control on the part of the 
judiciary and it was declared that "every act of the courts of justice which purports 
to oppose or arrest the administration shall be unconstitutional and void. " In short, 
the principle was laid down that each of the departments of government was sover- 
eign and independent within its domain ; that the legislature should exercise all of 
the legislative power and only that; that the executive department should exercise 
all the executive power and no more ; etc. Still, it recognized certain necessary ex- 
ceptions, as where the administrative authorities were given certain powers of a 
judicial character. For the opinions of leading members of the National Assembly 
recognizing the doctrine of the separation of powers, see St. Girons, "La Separation 
des Pouvoirs," pp. xxii-xxiii. See also Bluntschli, "AUgemeine Staatslehre," bk. 
VII, ch. 7, pp. 80-81; Duguit, "Droit constitutionnel," p. 323; and Rousseau, 
"Contrat social," bk. Ill, ch. i. 
' Chase's Edition, p. 17. 



THE THEORY OF THE SEPARATION OF POWERS 415 

cerning the separation of powers became a part of the 
political creed of the early statesmen. Madison, in almost 
the very language of Montesquieu, whom he pronounced 
"the oracle who is always consulted and cited on this sub- 
ject," defended the doctrine as essential to the protection 
of individual liberty. "The accumulation of all powers, 
legislative, executive, and judicial, in the same hands," he 
said, "whether of one, a few, or many, and whether heredi- 
tary, self-appointed, or elective, may justly be pro- 
nounced the very definition of tyranny." ^ George Wash- 
ington, John Adams, Thomas Jefferson, Alexander Ham- 
ilton, and later Kent, Story, and Webster, all expressed 
similar views.^ 

In the early state constitutions framed before the close Early Con- 
of the eighteenth century the idea that legislative, execu- provis*ions 
tive, and judicial functions must be kept separate, and in- 
trusted to distinct authorities, was expressed in no uncertain 
language; and their governments were organized as nearly 
in accordance with the theory as considerations of expedi- 
ency and efficiency permitted. Thus the constitution of 
Massachusetts (1780) declared that "in the government 
of this commonwealth the legislative department shall 
never exercise the executive and judicial powers or either 
of them; the executive shall never exercise the legislative 
or judicial powers or either of them; the judicial shall 
never exercise the legislative and executive powers or either 

» "The Federalist," No. 47. 

^ See Washington's Farewell Address; Hamilton, in "The Federalist" no. 47; 
Jefferson's "Notes on Virginia"; Kent, "Commentaries," vol. I, p. 283; Story, 
"Commentaries," vol. I, bk. Ill, ch. 8; Webster's Works, vol. IV, p. 122. "It is by 
balancing each of these three powers against the other two," said Adams, "that the 
efforts in human nature toward tyranny can alone be checked and restrained and any 
degree of freedom be preserved." " I agree," said Hamilton, " that there is no liberty 
if the power of judging be not separate from the legislative and executive powers." 
" The separation of the departments," said Webster, " so far as practicable, and the 
preservation of clear lines between them, is the fundamental idea in the creation of 
all our constitutions, and doubtless the continuance of regulated liberty depends on 
maintaining these boundaries." 



41 6 DISTRIBUTION OF POWERS OF GOVERNMENT 

of them, to the end that it may be a government of laws 
and not of men." Declarations similar in substance were 
incorporated in most of the other revolutionary state 
constitutions and in those which followed the adoption 
of the federal constitution/ Practically all of the state 
constitutions that have since been framed contain "dis- 
tributing clauses" expressly providing for a tripartite 
division of governmental powers among separate and 
distinct departments or organs. The few that contain 
no formal distributing clauses nevertheless vest the leg- 
islative, executive, and judicial functions in separate 
organs, so that whether the theory is formally expressed 
or not, the government in every case is in fact organized in 
accordance with the principle of separation. 
Doctrine The present conception as well as the current practice in 
United America has lately been expressed by the Supreme Court 
states of the United States in the following language: "It is be- 
^upreme jj^^^^ ^^ ^^ ^^^ ^^ ^^^ chief merits of the American system 

of written constitutional law that all powers intrusted to 
the government, whether state or national, are divided into 
three grand departments, the executive, the legislative, 
and the judicial; that the function appropriated to each of 
these branches of government shall be vested in a separate 
body of public servants, and that the perfection of the 
system requires that the lines which separate and divide 
these departments shall be broadly and clearly defined. 
it is also essential to the successful working of the system 
that the persons intrusted with power in any one of these 
branches shall not be permitted to encroach upon the 
powers confided to the others, but that each shall, by the 
law of its creation, be limited to the powers appropriated 

' For similar declarations in the other revolutionar)' state constitutions, see "The 
Federalist," no. 46; also Morey and Webster, "The First State Constitutions," 
in the "Annals of the American Academy of Political and Social Science," vols. IV 
and IX, respectively; and Bondy, "The Separation of Governmental Powers," 
p. 151. 



LIMITATIONS OF THEORY OF SEPARATION 417 

to its own department, and no other." ^ In various foreign 
constitutions, particularly those which have been framed 
under the influence of American ideas, the theory is em- 
bodied in similar form.^ In the states of Europe, where 
the cabinet system of government prevails, the close 
connection between the legislative and executive organs 
constitutes an important exception to the theory; yet, 
upon careful examination, the violation of the principle 
will be seen to be really less than it appears, since the func- 
tions of legislation and execution are in fact intrusted to 
separate organs, even though one is controlled by and is 
responsible to the other for the manner in which it exer- 
cises its powers. In none of them is the legislature really 
the executor of the law or the judge of the controversies 
raised in the course of its application; nor does the judi- 
ciary legislate or administer. The inconvenience and dan- 
ger, however, of such a confusion of functions is admit- 
ted by European writers as well as by those in America.^ 

II. LIMITATIONS OF THE THEORY OF THE SEPARATION 

OF POWERS 

When we assert it to be a fundamental principle of polit- The 
ical science that the legislative, executive, and judicial inca°p7bie 
functions of government should be intrusted to separate ^ ^^^^'^^ 
and independent organs or departments, we are to under- tion 
stand the proposition as being true only in a limited sense. 
Both reason and experience abundantly show that no 
government can be organized on the principle of the abso- 
lute and complete separation of the departments among 
which the legislative, executive, and judicial functions are 
distributed. There is not now and never has been a con- 
stitution in which the three departments were not more 

^ Kilbourne v. Thompson, 103 U.S., p. 188. 

^ For example, in those of Argentina, Australia, Brazil, Chile, and Mexico. 
^ Compare, for example, Esmein, "Droit constitutionnel," pp. 364-365; and 
Mill, "Representative Government," p. 83. 
POL. SCI. — 27 



4i8 DISTRIBUTION OF POWERS OF GOVERNMENT 

or less connected and dependent one upon the other, and 
in which each exercised powers that, under a strict appli- 
cation of the theory, did not belong more properly to one 
of the others. In short, the doctrine of the separation of 
powers has never been anything more than a theory and 
an ideal. 
Locke's John Locke, the first political writer to attach great im- 

** portance to the theory, while contending that legislative 

and executive powers should be vested in separate hands, 
recognized what is now generally admitted, that in prac- 
tice the principle is incapable of full realization; "for," 
he said, "the legislature not being able to foresee and 
provide by-laws for all that may be useful to the com- 
munity, the executor of the laws having the power in his 
hands, has by the common law nature a right to make 
use of it, for the good of society, in many cases where 
the municipal law has given no directions. Nay, many 
things there are which the law can by no means provide 
for; these must necessarily be left to the discretion of him 
that has the executive power in his hands." ^ 
English Montesquieu, who, as has been said, made the principle of 

hi^Mon- separation a doctrine of liberty and gave it an importance 
tesquieu's rarely attained by any political theory, obviously did not un- 
derstand that it involved the absolute independence of each 
department of the others.^ He must have known that the 
British constitution, of which he was writing when he laid 
down his famous proposition regarding the doctrine of the 
separation of powers, did not in fact recognize the doctrine 

' "Two Treatises of Government," sec. 159. See also Goodnow, "Politics and 
Administration," pp. 11-12; also his Principles of Administrative Law," ch. 3; 
Bondy, "Separation of Governmental Powers," p. 117; Treitschke, "Politik," vol 
II, p. 3; Jellinek, "Recht des mod. Staates," p. 589. 

* Blackstone, who shared Montesquieu's enthusiasm for the theory of the separa- 
tion of powers, did not overlook the advantage of an "occasional intermixture of 
legislative and executive functions." "It is highly necessary for preserving the 
balance of the constitution," he observed, "that the executive power should be 
a branch, though not the whole of the executive." 



LIMITATIONS OF THEORY OF SEPARATION 419 

except in a qualified sense. ^ At that time, as now, the Eng- 
lish executive was a committee of the legislature; one 
chamber of the legislature constituted an important part 
of the judiciary and at the same time "a great constitu- 
tional council of the executive"; and the judiciary was 
to a considerable extent subordinate to both the executive 
and the legislature, being appointed by the one and de- 
pendent on the other for its subsistence. The laws were 
often executed by authorities which at the same time ad- 
ministered justice, and some of the minor judicial authori- 
ties, notably the justices of the peace, were important 
administrative authorities.^ 

When Montesquieu declared, therefore, that there could Montes- 
be no liberty where the executive and the judicial powers D^'ctrine 
were united in the same hands, and where the executive was 0/ Separa- 
not separated from the legislative, he stated what the ex- 
perience of England then and now contradicts. There is 
every reason for believing that Montesquieu did not mean 
to exclude each department from all control over the acts 
of the others or from all share or agency in their functions. 
This was the judgment of James Madison, who wrote at a 
time when Montesquieu's ideas were still fresh in the minds 
of political writers and when they were being defended by 
his American followers. "On the slightest view of the Brit- 
ish constitution," observed Madison, "we must perceive 
that the legislative, executive, and judiciary departments 
are by no means totally separate and distinct from each 
other." "From these facts, by which Montesquieu was Madison's 
guided," asserted Madison, "it may clearly be inferred, that JatToT*' 
in saying ' there can be no liberty where the legislative and 
executive powers are united in the same person or body 

^ Dicey, however, thinks that Montesquieu misunderstood the principles and 
practices of the English constitution, as his doctrine was in turn "misunderstood, 
exaggerated, and misapplied by the French statesmen of the Revolution." "Law 
of the Constitution," p. 187. 

^Compare Goodnow, "Principles of Administrative Law," p. 25; Bondy, op. 
cj/.,ch. 4; "The Federalist," No. 47; Maine, "Popular Government," pp. 219-220. 



420 DISTRIBUTION OF POWERS OF GOVERNMENT 

of magistrates/ or, 'if the power of judging be not sepa- 
rated from the legislative and executive powers,' he did 
not mean that these departments ought to have no partial 
agency in, or no control over, the acts of each other. His 
meaning, as his own words import, and still more con- 
clusively as illustrated by the example in his eye, can 
amount to no more than this, where the whole power of 
one department is exercised by the hands which hold the 
whole power of another department, the fundamental prin- 
ciples of a free constitution are subverted. This would 
have been the case in the constitution examined by 
him, if the king, who Is the sole executive magistrate, had 
possessed also the complete legislative power, or the 
supreme administration of justice; or if the entire legis- 
lative body had possessed the supreme judiciary or the 
supreme executive authority." ^ 
Limita- When the framers of the American constitution came 

thJxhiory ^o apply the theory in practice, they recognized the im- 
eariy practicability, not to say the undesirability, of absolute 

nized^' and Complete separation. " If we look to the constitutions 
of the several states," said Madison, "we find, notwith- 
standing the emphatical and, in some instances, the un- 
qualified terms in which the axiom has been laid down, 
there is not a single instance in which the several depart- 
ments of power have been kept absolutely separate and 
distinct." Some of the distributing clauses, in fact, ex- 
pressly recognized limitations upon the theory. Thus 
the constitution of New Hampshire (1776) qualified the 
principle by declaring that the " legislative, executive, and 
judiciary powers ought to be kept as separate from and 
independent of each other as the nature of a free govern- 
ment will admit; or as is consistent with the chain of con- 
nection that binds the whole fabric of the constitution in 
one indissoluble bond of unity and amity." Madison 
himself, in defending the doctrine in its qualified form, 

' "The Federalist," no. 46. 



LIMITATIONS OF THEORY OF SEPARATION 421 

asserted that " unless the departments were so far con- 
nected and blended as to give to each a constitutional 
control over the others, the degree of separation which 
the maxim requires as essential to a free government can 
never in practice be duly maintained." He stated the The True 
principle in a very general way when he said that " the ftated^by 
powers properly belonging to one department ought not to Madison 
be directly and completely administered by either of the 
other departments; it is equally evident that neither of 
them ought to possess, directly or indirectly, an overruling 
influence over the others in the administration of their 
respective powers." ^ This was probably all that Locke, 
Montesquieu, and Blackstone intended the theory to 
mean, though it will readily be admitted that the prin- 
ciple as thus stated is so broad and elastic that it can have 
little value as a practical rule. 

The strict separation of powers Is not only impracticable 
as a working principle of government, but it is one not to 
be desired in practice. The experience of the English and 
other constitutions where the principle is not strictly ob- 
served shows that it is not a necessary condition of free 
institutions, and that there is no necessary danger to lib- 
erty In allowing the lawmaking body to execute or even 
to judge.^ 

John Stuart Mill pointed out that If each department Absolute 
of the government were completely independent in its ^ce^oTthe 
sphere so that it could thwart the actions of the others, fre- Depart- 
quent deadlocks would be inevitable, since "each depart- pracUca- 
ment acting in defense of Its own powers would never lend ^^® 
its aid to the others; and the consequent loss in efficiency 
would outweigh all the possible advantages arising from 
the independence." ^ This danger was recognized by Black- 

^ "The Federalist," No. 47. Compare also Jefferson's "Notes on Virginia," 
P- 195- 

' Compare Crane and Moses, " Politics," p. 194. 

' "Representative Government," p. 82; Compare also Duguit, "La Separation 
des Pouvoirs," p. i. 



42 2 DISTRIBUTION OF POWERS OF GOVERNMENT 

stone, who, while defending the principle of the separation 
of the departments, declared that their "total disjunction" 
would in the end produce the same tyrannical effects as 
their complete union in the same hands, "by causing that 
union against which it seems to provide." The different 
attributes of sovereignty, observes Esmein, cannot be exer- 
cised separately any more than the different powers of a 
human being; they coordinate naturally and necessarily in 
a common action which presupposes their cooperation/ 
The true way to prevent the encroachment of one depart- 
ment upon the domain of the others is, as Madison has 
aptly remarked, to permit each to participate in the func- 
tions of the others to such an extent as to check them and 
keep them in their proper places without, however, con- 
trolling them.^ 

The framers of the United States constitution, impressed 
as they were with the value of the principle of separation, 
did not delude themselves into supposing that any 
precise or exact delineation of the three spheres could 
be drawn, or that anything was to be gained by an abso- 
lute separation of authorities such as the French Revolu- 

' "Droit constitutionnel," p. 369. Duguit points out that the separation of 
authorities or departments is often confused with the separation of functions. The 
greatest mistake of the French National Assembly of 1789, he says, was in trying to 
separate not only the functions of government but also the authorities {pouvoirs) by 
creating three separate entities and investing each with a part of sovereignty in 
violation of the principle of the unity of sovereignty. Neither Locke nor Montes- 
quieu, Duguit declares, ever fell into such an error. Neither intended to establish ?. 
legal theory, but simply to show how the English constitution, by a distribution of 
functions and a certain collaboration of organs, had established guarantees of liberty. 
Montesquieu never used the expression "separation of powers," nor did he ever 
maintain that organs vested with the several functions of government should be 
absolutely independent of each other and without any control over one another. 
"Droit constitutionnel," p. 319. 

* "The absolute independence of each department," observes Bluntschli, "con- 
tradicts the organic nature of the state. Each must in a certain sense be subordinate 
to the others, or the state would be torn to pieces, for "the head cannot be separated 
from the body and made equal to it without destroying the man." "Allgemeine 
Staatslehre," bk. VII, ch. 7. 



LIMITATIONS OF THEORY OF SEPARATION 423 

tionists undertook to introduce. They had in mind only a 
general distribution and aimed merely at a rough classifica- 
tion. They did not trouble themselves to inquire whether 
a particular power was legislative, executive, or judicial 
in its nature, but were concerned rather with the question 
of which department was best fitted to exercise a given 
power.* It was with them a question of administrative 
convenience and administrative expediency rather than 
one of pure political philosophy. Certain powers were 
vested in the executive, not because they were necessarily 
executive in character, but because the organization and 
methods of the executive department were such that those 
powers could be better exercised by it than by the depart- 
ment to which they strictly belonged. Thus the power 
of issuing ordinances and of negotiating treaties was con- 
ferred upon the executive, since both are a species of legis- 
lation which experience and reason have clearly shown 
can be more efficiently performed by the executive depart- 
ment than by the legislative department, where, under a 
purely scientific interpretation of their nature, they more 
properly belong. Likewise it is desirable, if not necessary, 
that the courts be allowed a share in legislation through 
their power to interpret the written law and to declare 
what is the unwritten law. For the same reason many 
other exceptions to the theory of separation were intro- 
duced in the organization of the government. 

The legislative department was made a sort of deposi- The Test 

r , r , . 1 • 1 1- of whether 

tory tor many classes or powers which are neither dis- an Act is 
tinctly legislative, executive, nor judicial in character, but ^^J^ex- 
which partake of the characteristics of all three, and which ecutive, ox 
were conferred upon the legislature through considerations 
of administrative convenience or political expediency.^ 
Every act which proceeds from the legislature is therefore 
classed as legislative; every act performed by the executive 

* Bondy, op. cit., p. 297. 

* Compare Cooley, "Principles of Constitutional Law," p. 44. 



424 DISTRIBUTION OF POWERS OF GOVERNMENT 

department is classed as executive; and so on, regardless of 
its real nature/ 
The True While no department exercises all the power which upon 
oAhe"^ a strict interpretation belongs to it, it nevertheless exercises 
Theory the essential part of it. Each department exercises inci- 
dental rights of a nature intrinsically different from the mass 
of powers logically belonging to it, but they are such only 
as are necessary to enable it to perform efficiently its func- 
tions as an independent branch of the government and are 
in reality part of the principal power itself.^ In practice, 
therefore, the theory has never been construed to mean that 
all the legislative power shall be exercised by the legislative 
department, or all the executive power by the executive 
department, or all the judicial power by the judicial depart- 
ment. The theory otherwise understood would be impos- 
sible of practical application in any governmental system.' 
It is impossible to draw a strict line of demarcation 
between the several departments. There is a common 
borderland between them, within which each department 
must tolerate the others if government is to be efficient. 
No legislature can discharge entirely all those functions 
which under a strict interpretation of the theory are legis- 

^ Thus the granting of a divorce is regarded as legislative or judicial according as 
it is granted by the legislature or the courts. And so with the issue of a charter or 
an ordinance or the appointment of an officer, etc. 

^ Compare State v. Noble, ii8 Indiana, p. 350. 

^ "The trouble with the theory," says Woodrow Wilson, "is that government is 
not a machine, but a living thing — no living thing can have its organs offset against 
each other as checks and live. On the contrary, its life is dependent on their quick 
cooperation, their ready response to the commands of instinct or intelligence, their 
amicable community of purpose. Government is not a body of blind forces; it is 
a body of men, with highly differentiated functions, no doubt, in our modern day of 
specialization, but with a common task and purpose. Their cooperation is indis- 
pensable, their warfare fatal. There can be no successful government without 
leadership or without the intimate, almost instinctive, coordination of the organs of 
life and action. This is not theory, but fact, and displays its force as fact, whatever 
theories may be thrown across its track. Living political constitutions must be 
Darwinian in structure and in practice." "Constitutional Government in the 
United States," p. 56. 



LIMITATIONS OF THEORY OF SEPARATION 425 

lative. Details must be filled up and rules issued by the 
executive, governing the application of the law, if the 
government is to be conducted on practical lines. In 
short, functions may be separated, but not the departments 
themselves/ 

While the departments are, theoretically, equal and Superi- 
coordinate, they "constitute one brotherhood whose con- theLef^is 
stant trust requires a mutual toleration of what seems to be i**^" 
a 'common because of vicinage' bordering on the domains 
of each." ^ In reality, however, the departments are not 
equal. In all governments the legislative department is 
in fact the most powerful of the three and the judiciary 
the weakest.^ The powers of the legislative department in 
most governments are not specifically enumerated, but are 
general or residuary in character; in short, it is a sort of 
repository, as has been said, of all powers not conferred on 
the other departments. It possesses everywhere a large 
control over the organization and activities of the other 
departments, through its power of supply and its power to 
create public offices and to provide for their support. It 
not only makes the laws that are to be interpreted by the 
judiciary and enforced by the executive, but lays down the 
rules and conditions in accordance with which the executive 
acts. The legislature is thus, in a sense, the regulator of 
the administration.* The very nature of government is 
such that the will of the lawmaking power must, to a cer- 
tain extent, be superior to the executive and the judiciary. 
This is necessarily so because the will of the state must be 
expressed before it can be interpreted and enforced, and in 
formulating that will the legislature may, as has been said, 

* Compare Goodnow, "Politics and Administration," p. 14. 

' Brown v. Turner, 70 N.C. 93. 

' Cf. Story, " Commentaries," sec. 534. On the subordination of the executive 
to the legislature, see Berthelemy, op. a't., bk. II, chs. 1-2. 

■• Cf. Goodnow, " Comparative Administrative Law," vol. I, p. 31 ; and 
Bluntschli, op. cit., bk. VII, ch. 7. 



426 DISTRIBUTION OF POWERS OF GOVERNMENT 



Weak- 
ness of 
the Judi- 
ciary 



prescribe the conditions and circumstances under which 
execution shall take place. 

The judiciary, on the contrary, possesses no control over 
the source of supply or over the army or the governmental 
organization of the state. It cannot, as has been remarked 
by a distinguished commentator, lay taxes, nor appropriate 
money, nor command armies nor appoint officers. It has 
no means of influence through the power of patronage, no 
powers, in short, that can be wielded for itself/ 



' Story, "Commentaries," sec. 542. 



CHAPTER XIV 
THE LEGISLATIVE DEPARTMENT 

Suggested Readings: Benoist, "La Crise de I'fitat moderne," 
chs. 3-5; Bluntschli, " Allgemeines Staatsrecht," bk. II, also his 
"Politik," bk. X, ch. 3; Bornhak, "Allgemeine Staatslehre," pp. 94- 
133; Brougham, "The British Constitution," Works, vol. XI, chs. 
3-7; Burgess, "Political Science and Constitutional Law," vol. II, 
bk. Ill, ch. 5; Crane and Moses, "Politics," ch. 13; Duguit,/' Droit 
constitutionnel," sees. 52, 53, 56, 57, 106-122; also his "L'Etat, les 
Gouvernants et Les Agents," ch. 2 ; Esmein, " Droit constitutionnel," 
pt. II, ch. 5; also pt. I, ch. 3 ; also pp. 198-209 ; Gumplowicz, " All- 
gemeines Staatsrecht," bk. I, ch. 9 ; Hare, " Election of Representa- 
tives," chs. 1-5; Jellinek, "Recht des modernen Staates," bk. Ill, 
ch. 17; Kent, "Commentaries," Lect. XI; L-weleye, "Le Gou- 
vernement dans la Democratic," vol. II, bk. VIII; Le acock, "Ele- 
ments of Political Science," pt. II, ch. 2; Lecky, "Democracy and 
Liberty," vol. I, chs. 3 and 4; Lewis, "Use and Abuse of Political 
Terms," ch. 12; Lieber, "Civil Liberty and Self-government," chs. 
15-17; also his "Political Ethics," vol. II, bk. VI, chs. 1-3; Mill, 
"Representative Government," chs. 5, 7, 9, 12, 13; Ordronaux, 
" Constitutional Legislation," ch. 6; Posado, "Tratado de Derecho 
Politico," vol. II, bk. VI, chs. 1-3; Reinsch, " American Legislatures 
and Legislation Methods"; Rousseau, "Contrat social," bk. II, 
ch. 15; SiDGWiCK, "Elements of Politics," chs. 20 and 23; St. Girons, 
"La Separation des Pouvoirs," bk. I, ch. 2; Story, "Commenta- 
ries," bk. Ill, ch. 8; Wilson, "Congressional Government," chs. 2 and 
3; also his " Constitutional Government," chs. 4 and 5. 

I. ORGANIZATION: THE UNICAMERAL VERSUS THE BICAMERAL 

PRINCIPLE 

It has become almost an axiom in political science that Early 
legislative bodies should consist of two chambers.^ At the 
present time those constructed on the unicameral principle 

* Cf. Esmein, "Droit constitutionnel," third ed., p. 72; Bryce, "American Com- 
monwealth," abridged ed., p. 331; Laveleye, "Le Gouvernement dans la Demo- 
cratie," vol. II, p. 7; Story, "Commentaries," vol. I, sec. 548. 

427 



428 THE LEGISLATIVE DEPARTMENT 

are found only in Greece, Luxembourg, Servia, the Cana- 
dian provinces of British Columbia, Manitoba, and Ontario, 
a few of the smaller German states, and some of the Swiss 
cantons. Formerly, however, the unicameral idea found 
more favor than now. In America, in the eighteenth cen- 
tury, it had an influential advocate in Benjamin Franklin, 
who is said to have compared a double-chambered legis- 
lative assembly to a cart with a horse hitched to each 
end, both pulling in opposite directions. Largely through 
his influence the legislature of Pennsylvania under its first 
constitution was constructed on the unicameral principle, 
and we have the testimony of John Adams that the ques- 
tion of whether the early American legislatures generally 
should consist of one or two chambers was one of tran- 
scendent importance at the time of the adoption of the first 
state constitutions.^ 
Experi- In France, at the time of the Revolution, the unicameral 

the Uni- idea, had many supporters, and the principle was incorpo- 
camerai rated in the constitution of 1701 by an almost unanimous 

System . i -y J 

vote of the National Assembly, and was continued in the 
constitution of 1793.^ The constitution of the year III 
(1795), however, established the bicameral system; and it 
was continued until 1848, when the single chamber was 
again reverted to, though only for a brief interval. Among 
the powerful advocates of the unicameral principle in 1848 
was Lamartine, as Turgot had been its ablest defender at 
the time of the Revolution. The experience of France with 
single-chambered legislative assemblies, however, was not 
satisfactory; and their proceedings, it is said, " were marked 
by violence, instability, and excesses of the worst kind." ^ 

^ See his essay entitled, "A Defense of the American Constitutions." 
" For a summary of the views of the advocates and opponents of the single chamber 
system in the French Constituent Assembly of 1789, see St. Girons, "La Separation 
des Pouvoirs," pp. 175 flf. 

' Boissy d'Anglas, one of the French advocates of the bicameral system at the time 
of the Revolution, asserted in 1795 that many of the evils which Frenchmen had suf- 
fered since the beginning of the Revolution had been due to the violence and excesses 



THE UNICAMERAL SYSTEM 429 

With remarkably few exceptions the states which have ex- 
perimented with the single chamber system have aban- 
doned it for the bicameral system. In England, during 
the Commonwealth, it was tried for a brief period, but with- 
out success; and the House of Lords, which had been abol- 
ished, was soon restored. The lack of a second chamber in 
the national congress was one of the causes of dissatisfaction 
with the Articles of Confederation in the United States, and, 
with the exception of Benjamin Franklin, none of the 
framers of the constitution favored retaining the unicam- 
eral system.^ In Pennsylvania, where it existed for a time, 
we are told that it was marked by a "want of stability" and 
resulted in "extremely impulsive and variable legislation."^ 
It was soon abandoned in Pennsylvania and in the few 
other states where it had been introduced. Other coun- 
tries, notably Spain, Portugal, Naples, Mexico, Bolivia, 
Ecuador, and Peru, have all abandoned it, after a fair trial, 
for the double-chambered system. 

The chief argument advanced in favor of the unicameral 

of a single-chambered legislative assembly. See also St. Girons, "La Separation 
des Pouvoirs," p. 178. 

' Compare Hamilton, in "The Federalist," Nos. 62 and 63. See also the editor's 
note to Ford's editionof "The Federalist," No. 22, p. 142. "The Continental 
Congress," he remarks, "had illustrated the evils of a single legislative body. 
Frequently it had adopted resolutions only to repeal them the next day^ and in 
several cases had rejected, considered, and adopted, and again rejected in the course 
of a week, the same motion; the change being due to the arrival or departure of 
members, and to the lack of any check." See also Kent's " Commentaries," twelfth 
ed., vol. I, p. 222, where it is said that "the instability and passion" which marked 
the proceedings of the single chamber and assemblies of Pennsylvania and Georgia 
" were very visible at the time and the subject of much public animadversion." " No 
portion of the political history of mankind," remarks Kent, "is more full of instruc- 
tive lessons on this subject, or contains more striking proof of the faction, instability, 
and misery of states, under the dominion of a single unchecked assembly, than 
that of the Italian republics of the middle ages which arose in great numbers and 
with dazzling but transient splendor, in the interval between the fall of the western 
and the eastern empire of the Romans. They were all alike ill constituted, with a 
single unbalanced assembly. They were alike miserable and all ended in similar 
disgrace." , 

'"The Federalist," Ford's ed., p. 142, note i. 



43° 



THE LEGISLATIVE DEPARTMENT 



Argument 
in Favor 
of the 
Unicam- 
eral Sys- 
tem 



system by the French statesmen and political writers in 
1789 and again in 1848 was that it secured "unity" instead 
of "duality" in the organization of the legislative branch 
of the government. Two or three chambers, it was argued, 
meant two or three sovereignties.^ "The law," said Sieyes, 
"is the will of the people; the people cannot at the same 
time have two different wills on the same subject; therefore, 
the legislative body which represents the people ought to be 
essentially one. Where there are two chambers, discord and 
division will be inevitable and the will of the people will be 
paralyzed by inaction." ^ The same view was expressed by 
Lamartine, who maintained that the double chamber sacri- 
ficed the great principle of unity by dividing the sovereignty 
of the state.^ A similar line of reasoning was pursued by 
Condorcet, Robespierre, and other leaders in France at the 
time of the Revolution. In America, likewise, the same 
kind of argument was advanced by Franklin and others 
against the bicameral theory. Legislation being merely 
the expression of the common will, the necessity of com- 
mitting it to two separate assemblies, each having a veto 
upon the action of the other, was not apparent. "All 
the arguments," says Judge Story, "derived from the 
analogy between the movements of political bodies and the 
operations of physical nature, all the impulses of political 
parsimony, all the prejudices against a second coordinate 



' Duguit "Droit constitutionnel," p. 344. 

' Quoted by Laboulaye in " Questions constitutionnelles," p. 349. 

' Cited by Lieber in his " Civil Liberty and Self-government," p. 199. Compare 
also Destutt de Tracy, who argued that "the legislative body ought to be a unit in 
order that it may legislate without struggling against itself." " Commentaire de 
I'Esprit des Lois," bk. XI, ch. 2. See also St. Girons, "La Separation des Pouvoirs," 
pp. 175-176. One manifest advantage of the single chamber principle is that in 
countries where the cabinet system of government prevails ministerial responsibility 
can be more readily enforced. The existence of two chambers under such a sys- 
tem is confusing, and one of them must necessarily play a subordinate role, since it 
has worked out in practice that responsibility to two chambers cannot very well be 
enforced. Great Britain is just now experiencing the difl&culty of having two 
chambers, each claiming to exercise equality of powers in financial legislation. 



THE BICAMERAL SYSTEM 431 

legislative assembly stimulated by the exemplification of 
it in the British Parliament, were against a division of the 
legislative power." ^ In short, a double-chambered legis- 
lature was an assembly divided against itself. 

In America, John Adams combated the doctrines of The view 
Franklin, Turgot, and the other French critics of the bi- ^d^s^ 
cameral system, in a rather remarkable essay entitled "A 
Defense of the Constitutions of Government of the United 
States," in which, among other things, he defended with 
ability and learning the principle of the division of the legis- 
lative power between two coordinate assemblies. He re- 
viewed the history of free governments and undertook to 
show that government by single assemblies had "generally 
been visionary if not corrupt and violent and had usually 
ended in despotism." "Of all possible forms of govern- 
ment, a sovereignty in a single assembly, successively chosen 
by the people, is," he said, "perhaps the best calculated to 
facilitate the gratification of self-love, and the pursuit of the 
private interests of a few individuals — In one word, the 
whole system of affairs and every conceivable motive of 
hope or fear will be employed to promote the private in- 
terests of a few of their obsequious majority; and there 
is no remedy but in arms." 

Notwithstanding all the objections raised against the Advan- 
bicameral system, experience has apparently established s^g^on?* 
its advantages over the single chamber scheme. "It ac- Chamber 
companies the Anglican race," observes Francis Lieber, 
"like the common law, and everywhere it succeeds."^ 
"Of all the forms of government that are possible among 
mankind," says Lecky, "I do not know any which is likely 
to be worse than the government of a single omnipotent 

* "Commentaries," vol. I, sec. 548. Duguit denies that the principle of "duality" 
in the structure of the legislature necessarily means conflict and enfeeblement of the 
legislative power or retards needed political reforms, and he shows from the experi- 
ence of France that assertions to the contrary are not supported by the facts. "Droit 
constitutionnel," p. 347. 

* "Civil Liberty and Self-government," p. 197. 



432 



THE LEGISLATIVE DEPARTMENT 



It prevents 
Hasty 
Consid- 
eration of 
Legisla- 
tive Meas- 
ures 



It affords 
Protection 
against 
Legisla- 
tive Des- 
potism 



democratic chamber. It is at least as susceptible as an 
individual despot of the temptations that grow out of the 
possession of an uncontrolled power, and it is likely to act 
with much less sense of responsibility and much less real 
deliberation." ^ 

The advantages of a second chamber may be summarized 
as follows : First, it serves as a check upon hasty, rash, and 
ill-considered legislation. Legislative assemblies are often 
subject to strong passions and excitements and are some- 
times impatient, impetuous, and careless. The function of 
a second chamber is to restrain such tendencies and to 
compel careful consideration of legislative projects. It 
interposes delay between the introduction and final adop- 
tion of a measure and thus permits time for reflection and 
deliberation.^ "One great object of the separation of the 
legislature into two houses acting separately and with co- 
ordinate powers," said Chancellor Kent, "is to destroy the 
evil effects of sudden and strong excitement and of precipi- 
tate measures springing from passion, caprice, prejudice, per- 
sonal influence, and party intrigue, which have been found 
by sad experience to exercise a potent and dangerous sway 
in single assemblies.^ It is clear, says Bluntschli, in explain- 
ing the advantages of the bicameral system, that four 
eyes see more and better than two, especially when a given 
subject may be considered from different standpoints.* 

In the second place, the bicameral principle not only 
serves to protect the legislature against its own errors of 
haste and impulse, but it also affords a protection to the 

^ "Democracy and Liberty," vol. I, p. 299. 

^ Story, "Commentaries," vol. I, sees. 550-554. 

' "Commentaries," vol. I, lect. XI. "There is certainly no proposition in poli- 
tics," says Lecky, " more indubitable than that the attempt to govern a great hete- 
rogenous empire simply by such an assembly must ultimately prove disastrous, and 
the necessity of a second chamber to exercise a controlling, modifying, retarding, 
and steadying influence has acquired almost the position of an axiom." "Democ- 
racy and Liberty," vol. I, p. 300. See also St. Girons, "La Separation des 
Pouvoirs," p. 185. 

* " Allgemeines Staatsrecht," p. 6. 



THE BICAMERAL SYSTEM 433 

individual against the despotism of a single chamber. 
The existence of a second chamber is thus a guarantee of 
liberty as well as to some extent a safeguard against 
t^^ranny/ Where the whole legislative power is intrusted 
to a single omnipotent assembly, the restraining element 
of a second chamber is lacking. There is a natural pro- 
pensity on the part of legislative bodies to accumulate 
power into their hands, to absorb the powers of the ex- 
ecutive and the judiciary, in short, to draw into their grasp 
the whole government of the state. They have a con- 
stant tendency, observes Judge Story, to overstep their 
proper boundaries, from passion, from ambition, from in- 
advertence, from the prevalence of faction, or from the 
overwhelming influence of private interests. Under such 
circumstances, he adds, the only effective barrier against 
oppression, whether accidental or intentional, is to "sepa- 
rate its operations, to balance interest against interest, 
ambition against ambition, the combinations and spirit 
of dominion of one body against the like combinations 
and spirit of another." ^ The existence of a second cham- 
ber, continues Story, doubles the security of the people by 
requiring the concurrence of two distinct bodies in any 
scheme of usurpation or perfidy where otherwise the 
ambition of a single body would be sufficient.^ "The 
necessity of two chambers," says Bryce, "is based on 
the belief that the innate tendency of an assembly to be- 
come hateful, tyrannical, and corrupt, needs to be checked 
by the coexistence of another house of equal authority. 
The Americans restrain their legislatures by dividing them, 

* Cf. St. Girons, "La Separation des Pouvoirs,"p. 182. See also Laveleye, "Le 
Gouvernement dans la Democratie," vol. II, p. 11. 

^ "Commentaries," vol. I, sec. 558. "The executive power in our government," 
said Jefferson, "is not the only, perhaps not even the principal, object of my 
solicitude. The tyranny of the legislature is really the danger most to be feared 
and will continue to be so for many yeais to come." Letter to Madison, March 
15, 1789. 

* Ibid., sec. 700. 

POL. SCI. — 28 



434 



THE LEGISLATIVE DEPARTMENT 



It gives 
Represen- 
tation to 
Different 
Interests 
or Classes 



just as the Romans restrained their executives by substitu- 
ting two consuls for one king." * 

A third advantage of the bicameral system is that it 
affords a convenient means of giving representation to spe- 
cial interests or classes in the state and particularly to the 
aristocratic portion of society, in order to counterbalance 
the undue preponderance of the popular element in one of 
the chambers, thus introducing into the legislature a con- 
servative force to curb the radicalism of the popular cham- 
ber. We cannot, says Bluntschli, ignore the distinction 
between the aristocratic and democratic elements in the 
population of the state and allow one of these elements 
alone representation in the legislature without doing the 
other an injustice.^ Montesquieu asserted, not without 
some truth, that there are always persons in every state, 
distinguished by their birth, wealth, or honors, to whom, if 
they are confounded with the common people and are 
given only an equal share in the government with the rest, 
the common liberty would be slavery and who would have 

* "The American Commonwealth," abridged ed., p. 331. Sidgwick observes that 
passions are more likely to affect a single body than two, and that the danger of en- 
croachments by the legislature on the functions of the executive is undoubtedly 
diminished by the existence of two legislative chambers. See further concerning the 
safeguards which the bicameral system affords against legislative encroachments upon 
individual liberty, his "Elements of Politics," p. 406. John Stuart Mill did not 
attach much importance to the value of a second chamber as a check upon precipi- 
tancy of legislation or as a means of compelling deliberation, and he expressed the 
opinion that the subject had received an amount of attention, especially on the 
continent of Europe, out of all proportion to its importance. "For my own part," 
he said, "I set little value on any check which a second chamber can apply to a 
democracy otherwise unchecked." Yet Mill admitted that a second chamber serves 
an important purpose as a check upon legislative despotism. A majority in a single 
assembly, he said, with no check but their own will, "easily becomes despotic and 
overweening, if released from the necessity of considering whether its acts will be con- 
curred in by another constituted authority." "The same reason which induced the 
Romans to have two consuls," he observed, "makes it desirable that there should 
be two chamber